WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
A Place for Mom, Inc. v. Above.com Domain Privacy / Host Master, Transure Enterprise Ltd
Case No. D2016-2265
1. The Parties
Complainant is A Place for Mom, Inc. of Seattle, Washington, United States of America (“United States”), represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States.
Respondent is Above.com Domain Privacy of Beaumaris, Australia / Host Master, Transure Enterprise Ltd of Wilmington, Delaware, United States.
2. The Domain Name and Registrar
The disputed domain name <wwwaplaceformom.com> is registered with Above.com, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2016. On November 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 13, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on November 14, 2016, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on November 18, 2016.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 11, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 12, 2016.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on December 19, 2016. 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
Complainant A Place For Mom, Inc. is a Delaware corporation located in Seattle, Washington, United States. Respondent is an entity with an address in Wilmington, Delaware, United States. Complainant provides senior living referral information services in the United States and Canada and owns several trademark registrations for the mark A PLACE FOR MOM, as a word mark or as part of a logo, in the United States, Canada, the United Kingdom and the European Union. Complainant has submitted as Annex D to the Complaint, representative copies of its trademark registrations for the mark A PLACE FOR MOM, the earliest of which dates back to April 19, 2005 (United States Patent and Trademark Office (“USPTO”) trademark registration number 2941714).
The disputed domain name <wwwaplaceformom.com> was registered on or about January 6, 2009. Currently, the disputed domain name resolves to a webpage with links that appear to relate to assisted living and nursing homes.
5. Parties’ Contentions
Complainant asserts that it has rights in the mark A PLACE FOR MOM based on Complainant’s ownership of numerous service mark registrations for A PLACE FOR MOM in the United States and elsewhere, and because Complainant owns and uses the domain name <aplaceformom.com>.
Complainant contends that the disputed domain name <wwwaplaceformom.com> is identical and/or confusingly similar to Complainant’s A PLACE FOR MOM mark because it contains the mark A PLACE FOR MOM in its entirety and because the inclusion of the prefix “www” at the head of the disputed domain name is nothing more than a classic example of typosquatting.
Complainant argues that Respondent has no rights or legitimate interest in the disputed domain name as
(i) Respondent has no authorization, license or permission to use Complainant’s A PLACE FOR MOM mark; and (ii) Respondent is not commonly known by the disputed domain name.
Lastly, Complainant asserts that Respondent registered and is using the disputed domain name in bad faith as the disputed domain name is a typo domain that fully incorporates the mark A PLACE FOR MOM. Accordingly, Respondent knew or should have known of Complainant’s rights in the A PLACE FOR MOM mark in view of the registration of the A PLACE FOR MOM mark in the United States. Complainant also maintains that Respondent is acting in bad faith because Respondent is using the disputed domain name to redirect web traffic to a website that features links to Complainant’s competitors. Finally, Complainant argues that bad faith is established by Respondent’s continued use and ownership of the disputed domain name even after Complainant sent a demand letter concerning the disputed domain name.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.1. Here, although Complainant has put in almost no evidence of Complainant’s actual use of the mark A PLACE FOR MOM, Complainant has nevertheless provided evidence that it owns a trademark registration for the mark A PLACE FOR MOM in the United States and elsewhere since as early as April 2005.
While Complainant has established rights in the A PLACE FOR MOM mark, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain (“gTLD”) “.com”) is identical or confusingly similar with Complainant’s mark. B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The <wwwaplaceformom.com> disputed domain name is confusingly similar to the A PLACE FOR MOM mark as it incorporates the mark A PLACE FOR MOM in its entirety. The addition of the prefix “www” at the head of the disputed domain name, which is identical to a complainant’s mark, is of no import as the use of “www” with a trademark is a common form of typosquatting to redirect a web user. The Panel therefore finds that Complainant has satisfied the requirements of 4(a)(i) in establishing its rights in the mark A PLACE FOR MOM and in showing that the disputed domain name is confusingly similar to that trademark.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
Although Respondent has defaulted and not submitted a response, the Panel must nevertheless assess the sufficiency of the evidence provided by Complainant to determine whether Complainant has shown by a preponderance of the evidence that Respondent does not possess any rights or legitimate interests in the disputed domain name. See The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340; Bootie Brewing Company v. Deanna D. Ward and Grabebootie Inc., WIPO Case No. D2003-0185.
While the record before the Panel is very limited and Complainant has presented very little evidence regarding its own use of A PLACE FOR MOM (despite claiming extensive use of A PLACE FOR MOM in the Complaint), it is questionable, in light of Respondent’s failure to submit a response, whether Respondent has any rights or a legitimate interest in the disputed domain name. Respondent does not appear to be commonly known by the name and mark A PLACE FOR MOM. In addition, given that Respondent registered a typo domain name based on Complainant’s A PLACE FOR MOM mark and has been using such to direct web traffic to a website with links to third party websites that concern assisted living and nursing homes, the very services offered by Complainant under it’s a PLACE FOR MOM mark, there can be little doubt that Respondent was, and is, well aware of Complainant and its services.
Such use of the disputed domain name by Respondent to generate what appears to be click through revenue from links to competitors of Complainant is not a legitimate or bona fide use, but is an evident attempt to capitalize on an association between Complainant’s mark A PLACE FOR MOM and assisted living or nursing home services. The Panel thus concludes that none of the circumstances of paragraph 4(c) of the Policy are evident in this case and that Complainant prevails on this element of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your website or location or of a product or service on your website or location.”
In the present case, Respondent has registered a typo domain name that fully incorporates Complainant’s A PLACE FOR MOM mark for use with a website that includes links to third party websites offering assisted living or nursing home services. Such registration and use of the disputed domain name is clearly meant to take advantage of Complainant’s mark for the benefit of Respondent. Given Respondent’s actions and failure to provide a response in this proceeding or to a demand letter sent by Complainant, the Panel can only conclude that Respondent’s actions have been undertaken in bad faith and to capitalize on the association between the disputed domain name and Complainant’s A PLACE FOR MOM mark for the purpose of obtaining revenue or some other benefit from the links displayed at the website posted at the disputed domain name. Accordingly, the Panel finds that Complainant succeeds under this element of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <wwwaplaceformom.com> be transferred to Complainant.
Date: January 3, 2017