DECISION

Level 3 Communications, Inc v. Domain Deluxe

Claim Number:  FA0312000220051

PARTIES

Complainant is Level 3 Communications, Inc. (“Complainant”), represented by Adam L. Scoville of Faegre & Benson, LLP, 1700 Lincoln St., Suite 3200, Denver, CO 80202.  Respondent is Domain Deluxe (“Respondent”), P.O. Box 7628, General Post Office, Hong Kong 1, HK.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwlevel3.com>, registered with Enom, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Sandra Franklin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 18, 2003; the Forum received a hard copy of the Complaint on December 22, 2003.

On December 29, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain name <wwwlevel3.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On December 29, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 19, 2004 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@wwwlevel3.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On January 26, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <wwwlevel3.com> domain name is confusingly similar to Complainant’s LEVEL 3 mark.

2. Respondent does not have any rights or legitimate interests in the <wwwlevel3.com> domain name.

3. Respondent registered and used the <wwwlevel3.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Level 3 Communications, Inc., holds numerous registrations for the LEVEL 3 mark worldwide, including U.S. Reg. Nos. 2,400,493 and 2,586,143 and Hong Kong Reg. No. B13543/2000. Complainant’s registered rights in these marks predate Respondent’s registration of the <wwwlevel3.com> domain name, and are used by Complainant in connection with the providing of telecommunications, Internet service provider and Internet backbone services. Online, Complainant uses its mark at the <level3.com> domain name, which it has used since 1998 to host a website informing the public and Complainant’s customers about its services.

Respondent, Domain Deluxe, registered the <wwwlevel3.com> domain name on September 30, 2002, without license or authorization to use Complainant’s LEVEL 3 mark for any purpose. Respondent has used the disputed domain name to offer its domain name registration for sale through Domain Deluxe, to host a series of hyperlinks to pay-per-click search engines, and to host pop-up advertising. The disputed domain name is currently inactive.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant has established rights in the LEVEL 3 mark through successful registration of the mark with the proper governmental agencies worldwide. See Microsoft Corp. v. J. Holiday Co., D2000-1493 (WIPO Feb. 20, 2000) (“registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption”).

Respondent’s <wwwlevel3.com> domain name is confusingly similar to Complainant’s LEVEL 3 mark, as it simply adds the World Wide Web prefix (“www”) to Complainant’s registered LEVEL 3 mark. See Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) finding Respondent's <wwwdana.com> domain name confusingly similar to Complainant's registered DANA mark because Complainant's mark remains the dominant feature; see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from Complainant's NEIMAN-MARCUS mark.

Accordingly, the Panel finds that the <wwwlevel3.com> domain name is confusingly similar to Complainant’s LEVEL 3 mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent’s use of Complainant’s LEVEL 3 mark in its domain name, with the simple addition of the “www” prefix, is evidence in and of itself that Respondent lacks rights or legitimate interests in the disputed domain name. See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) holding that Respondent’s <wwwdinersclub.com> domain name, a typosquatted version of Complainant’s DINERS CLUB mark, was evidence in and of itself that Respondent lacks rights or legitimate interests in the disputed domain name vis á vis Complainant; see also Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting, as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”). Respondent’s actual uses of the domain name, offering the domain name registration for sale and using Complainant’s mark in the domain name to generate advertising revenue, bolsters rather than undercuts the conclusion that Respondent lacks rights or legitimate interests in the disputed domain name. Therefore, the Panel concludes that Complainant prevails on this element. See Mothers Against Drunk Driving v. Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) holding that under the circumstances, Respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name; see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) finding that Respondent’s diversionary use of Complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names.

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <wwwlevel3.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered and used the disputed domain name in bad faith. By registering a domain name that clearly seeks to capitalize on the goodwill that Complainant has built up around the LEVEL 3 mark and the traffic Complainant has attracted to the <level3.com> domain name, Respondent registered the <wwwlevel3.com> domain name in bad faith. By using its domain name as a platform to expose misdirected Internet users to advertising, Respondent is using the disputed domain name in bad faith. See Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) holding that the absence of a dot between the “www”and “canadiantire.com” in the <wwwcanadiantire.com> domain name was likely to confuse Internet users and evidences bad faith registration and use of the domain name; see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the “www” portion of [a] web-address,” evidence that the domain name was registered and used in bad faith; see also Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) finding that Respondent’s registration of an infringing domain name to redirect Internet users to banner advertisements constituted bad faith use of the domain name.

Additional evidence that the domain name was registered and used in bad faith can be found in Respondent’s willingness to sell its domain name registration. As Complainant (or perhaps one of its competitors) would be the only conceivable market for the <wwwlevel3.com> domain name, the Panel infers that Respondent’s intent in registering the disputed domain name was ultimately to sell its domain name registration to Complainant, which evidences that the domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(i).  See Pocatello Idaho Auditorium Dist. v. CES Mktg. Group, Inc., FA 103186 (Nat. Arb. Forum Feb. 21, 2002) ("[w]hat makes an offer to sell a domain [name] bad faith is some accompanying evidence that the domain name was registered because of its value that is in some way dependent on the trademark of another, and then an offer to sell it to the trademark owner or a competitor of the trademark owner"); see also Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”.

The Panel thus finds that Respondent registered and used the <wwwlevel3.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <wwwlevel3.com> domain name be TRANSFERRED from Respondent to Complainant.

Sandra Franklin, Panelist

Dated:  February 3, 2004

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