Wwwlavalife.com

The timeline behind wwwlavalife.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION Lavalife Inc. v. Yong Li Claim Number: FA0306000161269 PARTIES Complainant is Lavalife Inc., Toronto, ON, Canada (“Complainant”) represented by Candace Lynn Bell, of Kavinoky & Cook, LLP. Respondent is Yong Li, Beijing, China (“Respondent”). REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <wwwlavalife.com>, registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. James A. Carmody, Esq., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on May 30, 2003; the Forum received a hard copy of the Complaint on June 2, 2003. On June 3, 2003, Iholdings.Com, Inc. d/b/a Dotregistrar.Com confirmed by e-mail to the Forum that the domain name <wwwlavalife.com> is registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com and that Respondent is the current registrant of the name. Iholdings.Com, Inc. d/b/a Dotregistrar.Com has verified that Respondent is bound by the Iholdings.Com, Inc. d/b/a Dotregistrar.Com 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 June 3, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 23, 2003 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@wwwlavalife.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 June 27, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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 <wwwlavalife.com> domain name is confusingly similar to Complainant’s LAVALIFE mark. 2. Respondent does not have any rights or legitimate interests in the <wwwlavalife.com> domain name. 3. Respondent registered and used the <wwwlavalife.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant holds trademark registrations with the U.S. Patent and Trademark Office for the LAVALIFE mark (Reg. Nos: 2,646,908 – registered Nov. 5, 2002 and 2,672,951 – registered Jan. 7, 2003 – both filed Feb. 1, 2001) which is used in connection with providing dating services through the phone and via an interactive website. Complainant has also registered the LAVALIFE mark in other foreign countries such as Australia and Canada. Complainant registered the domain name <lavalife.com> on August 30, 2000. The domain name provides information and access to the Complainant’s goods and services provided under the LAVALIFE mark to current and potential customers. Complainant provides dating services through a phone service and via an interactive website. Respondent registered the disputed domain name on June 25, 2002. Respondent is using the disputed domain name to redirect Internet users to a webpage for “ADULT SINGLES.” Respondent’s services are marketed under the “ADULT SINGLES” mark. This website offers dating services similar to those offered by Complainant. 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 that it has rights in the LAVALIFE mark through registration with the U.S. Patent and Trademark Office (“USPTO”). Once the USPTO has granted registration of a mark, the effective date of ownership rights to the mark is the date of filing. See FDNY Fire Safety Educ. Fund, Inc. v. Roger Miller, FA 145235 (Nat. Arb. Forum March 26, 2003) (finding that Complainant’s rights in the FDNY mark relate back to the date that its successful trademark registration was filed with the U.S. Patent and Trademark Office); see also J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 U.S.P.Q. 435 (C.C.P.A. 1965) (registration on the Principal Register is prima facie proof of continual use of the mark, dating back to the filing date of the application for registration). Complainant also registered the LAVALIFE mark in foreign countries such as Australia and Canada. Respondent’s <wwwlavalife.com> domain name is confusingly similar to Complainant’s mark because it merely places the string of letters “www” before Complainant’s mark. The placement of “www” before Complainant’s mark capitalizes on a common typing error. Internet users who type Complainant’s mark into the URL but do not type the period between “www” and LAVALIFE will be unwillingly diverted to Respondent’s website. The addition of the “www” before Complainant’s mark does not therefore create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Dana Corporation 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). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant urges that Respondent has no rights to or legitimate interests in the disputed domain name. Respondent did not provide the Panel with a Response in this proceeding. Thus, the Panel may accept all reasonable allegations and inferences in the Complaint as true. See Bayerische Motoren Werke AG v Bavarian AG, FA 110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a Response the Panel is free to make inferences from the very failure to respond and assign greater weight to certain circumstances than it might otherwise do); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence). Moreover, due to Respondent’s failure to dispute the allegations in the Complaint, the Panel may presume that Respondent lacks any rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). 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 Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed). Furthermore, Respondent is using the <wwwlavalife.com> domain name to redirect Internet traffic to a webpage for “ADULT SINGLES,” which is a mark used by Respondent to market services similar to Complainant’s services. The use of a confusingly similar domain name in order to divert Internet users interested in Complainant’s services to a competing website is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain name to divert Internet users to its competing website); see also Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website). Finally, Respondent is not affiliated with Complainant and the evidence fails to establish that Respondent is authorized or licensed to register or use domain names or marks containing the LAVALIFE mark. The WHOIS information for the <wwwlavalife.com> domain name indicates Respondent, Yong Li, as the registrant; however, it fails to establish Respondent as an “individual, business, or other organazation” commonly known by the <wwwlavalife.com> domain name. Therefore, Respondent has no rights or legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name); see also MRA Holding, LLC v. Costnet, FA 140454 (Nat. Arb. Forum Feb. 20, 2003) (noting that “the disputed domain name does not even correctly spell a cognizable phrase” in finding that Respondent was not “commonly known by” the name GIRLS GON WILD or <girlsgonwild.com>). Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established. Registration and Use in Bad Faith It can be inferred that Respondent had knowledge of Complainant’s LAVALIFE mark when it registered the disputed domain name because the domain name is a misspelling of Complainant’s mark and is offering competing services. Registration of a domain name, despite knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse"); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration). Moreover, Respondent is engaged in a practice known as “typosquatting.” Respondent’s practice diverts Internet users who misspell Complainant’s mark to a website sponsored by Respondent for Respondent’s commercial gain, in violation of Policy ¶ 4(b)(iv). The practice of “typosquatting” has also been recognized as a bad faith use of a domain name under the UDRP pursuant to Policy ¶ 4(a)(iii). See AltaVista Co. v. Stoneybrook, D2000-0886 (WIPO Oct. 26, 2000) (awarding <wwwalavista.com>, among other misspellings of altavista.com, to Complainant); see also Dow Jones & Co. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (awarding domain names <wwwdowjones.com>, <wwwwsj.com>, <wwwbarrons.com> and <wwwbarronsmag.com> to Complainants). Furthermore, Respondent has registered a domain name primarily for the purpose of disrupting the business of their competitor, i.e. Complainant. Both parties provide dating services via the Internet. Respondent’s <wwwlavalife.com> domain name includes the LAVALIFE mark in order to divert current and potential Lavalife Inc., customers to Respondent’s website. The use of a competitor’s mark within a domain name, for the purpose of diverting potential customers to competing websites, constitutes disruption of a competitor’s business. This practice has been recognized as bad faith pursuant to Policy ¶ 4(b)(iii). See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion); see also General Media Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) (finding bad faith where a competitor of Complainant registered and used a domain name confusingly similar to Complainant’s PENTHOUSE mark to host a pornographic web site). The Panel finds the Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <wwwlavalife.com> domain name be TRANSFERRED from Respondent to Complainant. James A. Carmody, Esq., Panelist Dated: July 9, 2003 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.