DECISION

InfoSpace, Inc. v. no org a/k/a Pat Lit

Claim Number:  FA0403000245921

PARTIES

Complainant is InfoSpace, Inc. (“Complainant”), represented by Leslie C. Ruiter, of Stokes Lawrence, P.S., 800 Fifth Ave., Suite 4000, Seattle, WA 98104.  Respondent is no org a/k/a Pat Lit  (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ddogpile.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 March 12, 2004; the Forum received a hard copy of the Complaint on March 15, 2004.

On March 18, 2004, eNom, Inc. confirmed by e-mail to the Forum that the domain name <ddogpile.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 March 19, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 8, 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@ddogpile.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 April 19, 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 <ddogpile.com> domain name is confusingly similar to Complainant’s DOGPILE mark.

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

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

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

FINDINGS

Complainant is a global provider of wireless, Internet software, and application services to the leading wireless and broadband providers, websites, and merchant resellers around the world.  Complainant provides directory services, search engine services, and brokerages for electronic commerce transactions conducted via the Internet.

Complainant, through its wholly owned subsidiary, Go2Net, Inc., has been using the trademark DOGPILE since at least as early as November 1996 in connection with computer programs and telecommunications services, including Internet search services, in the United States and worldwide. Complainant registered the DOGPILE mark with the United States Patent and Trademark Office (“USPTO”) on November 11, 1996 (Reg. Nos. 2,456,655 and 2,401,276) in connection with the foregoing services.

Respondent registered the disputed domain name on September 4, 2001.  Respondent is using the domain name to redirect Internet users to a website located at the <usseek.com> domain name.  The resolved website contains a series of links to commercial websites. 

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

The registration of a mark with a governmental authority is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). Complainant owns two trademark registrations with the USPTO for its DOGPILE mark.  Thus, Complainant has established rights in the DOGPILE mark. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) finding that the 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.

A domain name that incorporates a third-party’s mark in its entirety and merely adds an additional letter has consistently been rendered confusingly similar to the mark under the Policy.  Here, Respondent has merely affixed the letter “d” to the beginning of Complainant’s DOGPILE mark.  Consistent with previous Policy decisions, the Panel finds that the disputed domain name is confusingly similar to Complainant’s DOGPILE mark. See Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) finding that <kelsonmd.com> is identical or confusingly similar to Complainant’s federally registered service mark, “Kelson”; see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) finding that Respondent’s domain name <eebay.com> is confusingly similar to Complainant’s registered EBAY trademark; see also Nat’l Geographic Soc. v. Stoneybrook Inv., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) finding that the domain name <nationalgeographics.com> was confusingly similar to Complainant’s “National Geographic” mark.

Furthermore, the attempt by a respondent to capitalize off of common typographical errors made by Internet users has been found to be typosquatting.  Typosquatting takes various forms, but it most frequently occurs through the addition or removal of certain letters within a domain name that incorporates a frequently searched mark owned by another party.  Here, Respondent has added the letter “d” to Complainant’s DOGPILE mark, which appears to be an attempt at attracting users who accidently double-type the letter “d” in their attempt to find Complainant.  Thus, the Panel finds that Respondent is engaged in the practice of typosquatting. See Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum Apr. 28, 2003) finding that Respondent's <marrriott.com> domain name was confusingly similar to Complainant's MARRIOTT mark because "Respondent's typosquatting, by its definition, renders the domain name confusingly similar to Complainant's mark."; see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) ("Respondent's <neimanmacus.com> domain name represents a simple misspelling of Complainant's NEIMAN MARCUS mark. Respondent's domain name is a classic example of typosquatting, the process of registering a common misspelled version of a famous mark in a domain name. It has been consistently held that typosquatting renders the domain name confusingly similar to the altered famous mark.").

Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not responded to the Complaint.  Thus, the Panel may construe such a failure as an implicit admission that Respondent lacks rights and legitimate interests in the domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names; see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) finding no rights or legitimate interests where Respondent fails to respond.

There is nothing in the record to indicate that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  Thus, without evidence to the contrary, the Panel adopts the uncontested assertions made by Complainant. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint; see also Vert. Solutions Mgmt., Inc. v. Webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true; see also Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) finding that the WHOIS information, and its failure to imply that Respondent is commonly known by the disputed domain name, is a factor in determining that Policy ¶ 4(c)(ii) does not apply; see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) finding that Respondent does not have rights in a domain name when Respondent is not known by the mark.

A domain name confusingly similar to a third-party’s mark that is used intentionally to attract Internet users to a completely unrelated website is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use; see also Am. Online, Inc. v. Tencent Communications Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) finding that use of Complainant’s mark “as a portal to suck surfers into a site sponsored by Respondent hardly seems legitimate”.

Likewise, as previously stated, Respondent is typosquatting upon Complainant’s established DOGPILE mark.  Typosquatting does not qualify as a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  Thus, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name. See 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.”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (WIPO Sept. 19, 2003) finding that Respondent lacked rights and legitimate interests in the disputed domain names because it "engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter 'x' instead of the letter 'c.'"; see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) finding that the <ltdcommadities.com>, <ltdcommmodities.com> and <ltdcommodaties.com> disputed domain names were typosquatted versions of Complainant's LTD COMMODITIES mark and "Respondent's 'typosquatting' is evidence that Respondent lacks rights or legitimate interests in the disputed domain names".

Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

In conjunction with the above, as typosquatting renders a domain name confusingly similar to a third-party’s mark and fails to establish rights or legitimate interests in the name for a respondent, it also is evidence of bad faith registration and use under the Policy.  Here, Respondent has typosquatted upon Complainant’s DOGPILE mark by intentionally attempting to attract Internet users to a website wholly unrelated to the DOGPILE mark.  The fact that the resolved website, which is located at the <usseek.com> domain name, does not contain the DOGPILE mark is further evidence that Respondent is using a common misspelling of Complainant’s mark to direct Internet users to its own website. See 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 Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003)( finding that Respondent registered and used the <zonelarm.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because the name was merely a typosquatted version of Complainant's ZONEALARM mark. "Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii)."); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) finding that the <dermatalogica.com> domain name was a typosquatted version of Complainant's DERMALOGICA mark and stating, "[t]yposquatting itself is evidence of bad faith registration and use pursuant to Policy 4(a)(iii).".

Moreover, under Policy ¶ 4(b)(iv), bad faith registration and use of a domain name is established when a respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark.  In the instant case, it has been established that Respondent has attempted to attract Internet users to its website by creating a likelihood of confusion with Complainant’s mark. This has been accomplished via Respondent’s registration of a domain name that is a common misspelling of Complainant’s DOGPILE mark. The question left to resolve is whether Respondent attracted these Internet users for commercial gain.  To resolve this question, one merely needs to look at the website located at the <usseek.com> domain name. The website contains links to a variety of websites that relate to blackjack, poker, casinos, keno, bingo, roulette, and slots.  Previous decisions under the Policy have found bad faith under Policy ¶ 4(b)(iv) when a respondent uses a domain name confusingly similar to a third-party’s mark to link to gambling websites.  Here, the Panel chooses to follow this line of cases.  Thus, Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked the domain name <marssmusic.com>, which is identical to Complainant’s mark, to a gambling website; see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) finding bad faith where Respondent linked the domain name to another website <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain; see also Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) finding that Respondent violated Policy ¶ 4(b)(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site.

Complainant has established Policy ¶ 4(a)(iii).

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 <ddogpile.com> domain name be TRANSFERRED from Respondent to Complainant.

Sandra Franklin, Panelist

Dated:  April 27, 2004

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