Engadfget.com

The timeline behind engadfget.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.

NATIONAL ARBITRATION FORUM DECISION AOL LLC v. Zheng Hua Claim Number: FA0911001294976 PARTIES Complainant is AOL LLC (“Complainant”), represented by James R. Davis, of Arent Fox LLP, Washington, D.C., USA. Respondent is Zheng Hua (“Respondent”), China. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <engadfget.com>, registered with Godaddy.com, Inc. 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. The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on November 17, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 18, 2009. On November 17, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <engadfget.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 November 19, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 9, 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@engadfget.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On December 15, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <engadfget.com> domain name is confusingly similar to Complainant’s ENGADGET mark. 2. Respondent does not have any rights or legitimate interests in the <engadfget.com> domain name. 3. Respondent registered and used the <engadfget.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, AOL LLC, holds several registrations of the ENGADGET mark (e.g., Reg. No. 3,232,607 issued Apr. 24, 2007) with the United States Patent and Trademark Office (“USPTO”) for use in connection with its technology blog. Respondent, Zheng Hua, registered the <engadfget.com> domain name on May 28, 2009. The website resolving from the disputed domain name displays links to third parties, some of whom directly compete 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 that Complainant’s registration of its ENGADGET mark with the USPTO (Reg. No. 3,232,607 issued Apr. 24, 2007) is sufficient to establish Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”). Further, registration in Respondent’s country of residence is not necessary to establish Complainant’s rights in the mark under Policy ¶ 4(a)(i). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business). The <engadfget.com> domain name adds the letter “f” between the “d” and “g” in Complainant’s ENGADGET mark and the generic top-level domain (“gTLD”) “.com.” The addition of the gTLD is irrelevant to an analysis under Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The letter “f” is between the letters “d” and “g” on a standard QWERTY keyboard. Further, previous panels have found that the difference of one letter between the disputed domain name and the mark creates a confusingly similarity. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”). The Panel finds that such minor changes to Complainant’s ENGADGET mark result in confusing similarity pursuant to Policy ¶ 4(a)(i). The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests The initial burden under Policy ¶ 4(a)(ii) is on Complainant to prove that Respondent does not have any rights or legitimate interests in the <engadfget.com> domain name. Once Complainant has made a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to the directions provided in Policy ¶ 4(c). 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 Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel finds that Complainant has presented a prima facie case, and the Panel now chooses to consider whether an evaluation of all the evidence demonstrates rights or legitimate interests for Respondent under Policy ¶ 4(c). The Panel finds no evidence in the record suggesting that Respondent is commonly known by the <engadfget.com> domain name. Complainant asserts that Respondent has no license or agreement with Complainant authorizing Respondent to use the ENGADGET mark, and the WHOIS information identifies Respondent as “Zheng Hua.” Thus, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain name 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 Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”). Respondent’s is using the <engadfget.com> domain name, which is confusingly similar to Complainant’s ENGADGET mark, to redirect Internet users interested in Complainant’s services to third-party websites. Some of these websites are in competition with Complainant’s business. The Panel finds this use is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site). Additionally, typosquatting occurs when a respondent purposefully includes typographical errors in the mark portion of a disputed domain name to divert Internet users who commit those typographical errors. The <engadfget.com> domain name takes advantage of Internet users who mistype Complainant’s ENGADGET mark. The Panel finds that Respondent engaged in typosquatting by misspelling Complainant’s mark in the disputed domain name. This is further evidence that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See 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 the complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also 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’”). The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent registered the disputed domain name on May 28, 2009, several years after Complainant established rights in the ENGADGET mark for use in connection with its technology blog. The Panel finds that Respondent is using the <engadfget.com> domain name to resolve to a website containing links to third-party websites that divert Internet users to competing technology blogs. The Panel finds that this use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites). The website that resolves from the <engadfget.com> domain name displays links to websites both unrelated to and in direct competition with Complainant’s business. The Panel infers that Respondent receives either pay-per-click fees or advertising fees for these advertisements. Since the disputed domain name is confusingly similar to Complainant’s mark, Internet users are likely to become confused as to Complainant’s affiliation or sponsorship of the disputed domain name and resolving website. Respondent was seeking to profit from this confusion by hosting advertisements on the resolving website. The Panel finds that this use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s registration of an infringing domain name to redirect Internet users to banner advertisements constituted bad faith use of the domain name). Furthermore, the Panel finds that Respondent’s engagement in typosquatting is evidence that Respondent registered and is using the <engadfget.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. 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 “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)). The Panel finds that Complainant has satisfied 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 <engadfget.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr. (Ret.), Panelist Dated: December 29, 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.