Napfish.com + 14 more domains

The timeline behind napfish.com

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

How each disputed name was decided in this proceeding.

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

NATIONAL ARBITRATION FORUM DECISION Hewlett-Packard Company and Hewlett-Packard Development Company, L.P. v. Bin g Glu c/o G Design, no sale - building Claim Number: FA0902001248633 PARTIES Complainant is Hewlett-Packard Company and Hewlett-Packard Development Company, L.P. (“Complainant”), represented by Alias Encore, Inc., California, USA. Respondent is Bin g Glu c/o G Design, no sale - building (“Respondent”), China. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com>, registered with Communigal Communications Ltd. 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. Honorable Karl V. Fink (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2009. On March 2, 2009, Communigal Communications Ltd confirmed by e-mail to the National Arbitration Forum that the <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names are registered with Communigal Communications Ltd and that Respondent is the current registrant of the names. Communigal Communications Ltd has verified that Respondent is bound by the Communigal Communications Ltd 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 9, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 30, 2009 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@napfish.com, postmaster@snapish.com, postmaster@snafish.com, postmaster@snpafish.com, postmaster@snapfsih.com, postmaster@snpfish.com, postmaster@snapfishh.com, postmaster@snapfishs.com, postmaster@ssnapfish.com, postmaster@sapfish.com, postmaster@snapfih.com, postmaster@snappfish.com, postmaster@snapfiish.com, postmaster@nsapfish.com, and postmaster@snafpish.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 8, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names are confusingly similar to Complainant’s SNAPFISH mark. 2. Respondent does not have any rights or legitimate interests in the <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names. 3. Respondent registered and used the <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Hewlett-Packard Company and Hewlett-Packard Development Company, L.P., is one of the largest information technology (“IT”) companies in the world which conducts its business in printing, personal computing, software, services, and IT infrastructure. Complainant also operates the number one online photo service in connection with its SNAPFISH mark. Complainant holds a registration of its SNAPFISH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,643,556 issued October 29, 2002). Respondent registered all of the <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names on January 6, 2004. All of the disputed domain names resolve to websites that displays several hyperlinks to various third-party websites, some of which are in direct competition with 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). 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 Panel finds the Complainant has sufficiently established rights in the SNAPFISH mark under Policy ¶ 4(a)(i) because it holds a registration of the mark with the USPTO. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."). Respondent’s <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names are all common misspellings of Complainant’s SNAPFISH mark and merely add the generic top-level domain (“gTLD”) “.com.” The disputed domain names differ from Complainant’s mark either by a single character or by a transposition of two characters. The Panel finds that the misspellings and the addition of the gTLD do not distinguish the disputed domain names from Complainant’s mark; and therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Initially, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain names. The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain names. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). Respondent’s <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names resolve to websites that display several hyperlinks to various third-party websites, some of which are in direct competition with Complainant. Accordingly, the Panel infers that Respondent receives click-through fees for these hyperlinks. Thus, the Panel finds that Respondent uses these hyperlinks to divert Internet users to Complainant’s competitors’ websites for a fee, and this diversion is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 also ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Furthermore, Respondent is listed in the WHOIS information as “Bin g Glu c/o G Design, no sale - building,” which does not indicate that it is commonly known by the <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names. Respondent has not offered any evidence to indicate otherwise. The Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”). Finally, Respondent’s disputed domain names take advantage of common misspellings of Complainant’s SNAPFISH mark. The Panel finds that this is evidence that Respondent engages in typosquatting, and that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the 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> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent’s confusingly similar <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names divert Internet users through the use of the aforementioned hyperlinks to Complainant’s competitors. The Panel finds that this activity disrupts Complainant’s business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business). In addition, Respondent, through the use of the above-described hyperlinks, receives fees for diverting Internet users to Complainant’s competitors’ websites. Accordingly, the Panel finds this commercial benefit from the use of the confusingly similar disputed domain names is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). Finally, Respondent is engaging in typosquatting by benefitting from common misspellings of Complainant’s SNAPFISH mark. The Panel finds that Respondent’s engagement in typosquatting is in and of itself evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”). The Panel finds that Policy ¶ 4(a)(iii) has been 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 <napfish.com>, <snapish.com>, <snafish.com>, <snpafish.com>, <snapfsih.com>, <snpfish.com>, <snapfishh.com>, <snapfishs.com>, <ssnapfish.com>, <sapfish.com>, <snapfih.com>, <snappfish.com>, <snapfiish.com>, <nsapfish.com>, and <snafpish.com> domain names be TRANSFERRED from Respondent to Complainant. Honorable Karl V. Fink (Ret.), Panelist Dated: April 22, 2009 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

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