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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Authorize.Net Corporation v. Services LLC

Case No. D2007-0021

 

1. The Parties

The Complainant is Authorize.Net Corporation, of United States of America, represented by Morse, Barnes-Brown & Pendleton, United States of America.

The Respondent is Services LLC, of Dominica.

2. The Domain Name and Registrar

The disputed domain name <autorize.net> is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 8, 2007. On January 10, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On January 10, 2007, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 15, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 4, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 6, 2007.

The Center appointed David J.A. Cairns as the sole panelist in this matter on February 20, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

The Complainant is Authorize.Net Corporation, a subsidiary of Lightbridge, Inc., active in the business of card payment authorizations in electronic transactions.

The Complainant is the owner of the trademark AUTHORIZE.NET registered with the United States Patent and Trademark Office under the following registration numbers: (i) Nє 2,422,317 for computer software for use in electronic authorization, processing and management of credit card and electronic check transactions conducted via a global computer network; (ii) Nє 2,749,994 for financial services in the nature of electronic authorization, processing and management of credit card and electronic check transactions via a global computer network; and (iii) Nє 3,016,105 for computer software for use in electronic authorization, processing and management of card present and card not present credit card, debit card and electronic check transactions conducted via a global computer network.

These trademarks were registered on January 16, 2001, August 12, 2003 and November 15, 2005, respectively.

The Respondent registered the disputed domain name <autorize.net> on August 15, 2003. The Respondent is currently using the domain name to operate a website as a portal to house e-commerce related links. The home page includes the banner ‘For resources and information on Merchant account and Accept credit cards’ and numerous search options are offered relating to e-commerce and credit cards. These searches produce ‘sponsored results’.

 

5. Parties’ Contentions

A. Complainant

The Complainant states that its Complaint is based on the Complainant’s AUTHORIZE.NET trademarks and variations thereof. The Complainant states that it is the owner of eight federal registrations for the AUTHORIZE.NET mark and variations thereof, for services and software relating to e-commerce payment processing. The Complainant submits evidence of the three registrations with the United States Trademark and Patent Office for the AUTHORIZE.NET mark referred to above.

The Complainant also states that it is the owner of the <authorize.net> domain name, registered on November 15, 1996, and 98 other domain names that are variations of the AUTHORIZE.NET mark.

The Complainant contends that the AUTHORIZE.NET marks are widely known. It alleges that by virtue of the Complainant’s extensive network of active merchants and resellers, and its investment in advertising, that its AUTHORIZE.NET marks have become famous. The Complainant states that the disputed domain name is virtually identical to the Complainant’s AUTHORIZE.NET marks, differing only in the omission of the letter “h”, and is visually and phonetically similar to the Complainant’s registered trademarks.

The Complainant states that the Respondent has no legitimate interest in the disputed domain name. It contends that the Respondent owns no trademark registrations and has no common law rights in the AUTHORIZE.NET mark, it does not hold itself and is not otherwise known as AUTHORIZE.NET and is not making a non-commercial fair use of the disputed domain name. The Complainant contends that the Respondent is not making a bona fide commercial use of the disputed domain name since it uses it to operate a portal housing e-commerce payment processing-related sponsored links, most of which resolve to websites of the Complainant’s competitors. The Complainant alleges that diverting consumers who are looking for its products on the Internet to competing e-commerce payment processing websites for commercial gain is not a legitimate bona fide use and does not confer legitimate interests in the domain name.

The Complainant submits that the practice of typosquatting has come to be generally regarded, in itself, as evidence of bad faith registration. It states that by deliberately choosing a name that is “one key stroke away” from the Complainant’s domain name, the Respondent is engaging in typosquatting. As a result of this practice, a user is unintentionally diverted to the Respondent’s website whenever the particular typographical error is made. The Complainant contends that a user who is misdirected may incorrectly believe that the Respondent is associated with or approved by the Complainant, thus causing a misappropriation of the goodwill because the goods and services offered are closely related to the goods and services offered by the Complainant. The Complainant adds that, by diverting Internet users towards third parties’ websites, the Respondent is obtaining a commercial benefit. It states that the disputed domain name is hosted in the servers of Hitfarm.com. Hitfarm.com’s website shows that it provides parties who park their domains with them “a hassle-free and investment-free opportunity to effectively and efficiently monetize traffic to [their] domains”.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

The Panel is required to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems appropriate.

The Policy requires the Complainant to prove all three of the following elements to be entitled to the relief sought: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the Respondent’s domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy elaborates some circumstances that shall be evidence of the registration and use of the domain name in bad faith. Paragraph 4(c) sets out various circumstances which, if found by the Panel to be proved based on the evaluation of all the evidence presented, shall demonstrate that the Respondent has rights and legitimate interests in the disputed domain name.

A. Identical or Confusingly Similar

The Panel is satisfied that the Complainant owns three United States Patent and Trademark Office registrations for the AUTHORIZE.NET mark.

The disputed domain name is not identical with the AUTHORIZE.NET word mark, but has an immediate similarity and only differs in a single letter.

The Panel finds that the disputed domain name is confusingly similar to the AUTHORIZE.NET mark for the following reasons: (i) AUTHORIZE.NET is an invented compound consisting of two terms whose association and linkage by a dot creates a distinctive name which intentionally alludes to the characteristics of the Complainant’s Internet card payment-authorization business; (ii) The Complainant’s business activity and goodwill has attached a strong secondary meaning to its mark, thus increasing its inherent distinctiveness; (iii) The Respondent is using the disputed domain name to offered sponsored links to the same types of services as offered by the Complainant, thereby increasing the risk of confusion; (iv) The single letter that distinguishes the disputed domain name from the Complainant’s trademark appears in the middle of the word ‘authorize’, and is of little visual and no phonetic significance.

In light of the foregoing the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s mark, and the first element of the Policy is satisfied.

B. Rights or Legitimate Interests

The Panel notes the following circumstances in relation to any possible rights or legitimate interests of the Respondent in the disputed domain name: (i) there is no evidence that the Respondent has any proprietary or contractual rights in any registered or common law trademark corresponding in whole or in part to the disputed domain name; (ii) the Respondent is not authorized or licensed by the Complainant to use the AUTHORIZE.NET mark or to register and use the disputed domain name; (iii) there is no evidence that the Respondent has been commonly known by the disputed domain name; and (iv) the Respondent is using the disputed domain name to generate revenue through sponsored links, including link to the websites of the competitors of the Complainant.

Paragraph 4(c) of the Policy provides a list of three circumstances, any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name. There is no evidence before the Panel of the existence of any of these circumstances in the present case. In relation to paragraph 4(c)(i) and (iii) the Panel finds that the Respondent’s use of the disputed domain name is for commercial gain through sponsored links, and also that a use of the disputed domain name to attract Internet traffic to a website based on confusion, inadvertence or error (through the misspelling of the Complainant’s mark by Internet users) is not a use in connection with a bona fide offering of goods or services.

Accordingly, and in the absence of any response from the Respondent providing any evidence to support a possible basis on which the Respondent may have acquired rights or legitimate interests in respect of the domain name, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four non-exclusive circumstances any of which, if found by the Panel, shall be evidence of registration and use of a domain name in bad faith.

In particular, paragraph 4(b)(iv) states that if the Panel finds that the Respondent has used the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website, it should be taken as evidence of the registration and use of the domain name in bad faith.

The Panel is satisfied that the disputed domain name has been registered and is being used in bad faith within the meaning of paragraph 4(b)(iv). The Respondent’s use of the disputed domain name with the intention to attract Internet users for commercial gain is established by the nature of the links offered on its website (see Nokia Corporation v. Nokiagirls.com a.k.a IBCC, WIPO Case No. D2000-0102; Patricia Ann Romance Peterson, Romance Productions Ltd. v. Network Operations Center/Alberta Hot Rods, WIPO Case No. D2006-1431), and by the fact that the links produce results specifically described by ‘sponsored results’. This conclusion is further corroborated by the fact that the domain name is parked with a domain server operated by a company which, on its website, promises easy revenues and offers sponsored links to domain name holders parking their domains there. The likelihood of confusion as to source, sponsorship, affiliation or endorsement is established by the fact that the disputed domain name is confusingly similar to the Complainant’s AUTHORIZE.NET mark.

Finally, the inherent distinctiveness and extensive goodwill of the Complainant’s mark, and the fact that Respondent is using the domain name to divert Internet users to links which include links to websites of competitors of the Complainant suggest that the Respondent purposefully misspelled the Complainant’s mark in the disputed domain name for the purpose of commercial gain. The Panel therefore concludes that the Respondent has engaged in typosquatting for commercial gain and this, in itself, constitutes registration and use in bad faith (see Lexar Media, Inc. v. Huang WIPO Case No. D2004-1039 and AltaVista Co. v. Yomtobian, WIPO Case No. D2000-0937).

Thus, the Panel is satisfied that the disputed domain name was registered and is being used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <autorize.net> be transferred to the Complainant.


David J.A. Cairns
Sole Panelist

Dated: March 6, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0021.html

 

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