WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

V S Media, Inc. v. Richard Jones

Case No. D2007-0246

1. The Parties

Complainant is V S Media, Inc., Calabasas, California, United States of America, represented by Lipsitz Green Scime Cambria, LLP, Buffalo, New York, United States of America.

Respondent is Richard Jones, whose address is listed in the Whois database as being Toulouse, na, United States of America.

2. The Domain Name and Registrar

The disputed domain name <flir4free.com> (the “Disputed Domain Name”) is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on February 19, 2007. On February 23, 2007, the Center transmitted by e-mail to eNom a request for registrar verification in connection with the domain name at issue. On February 23, 2007, eNom transmitted by e-mail to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for Respondent. 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”).

On March 7, 2007, the Center sent an e-mail to counsel for Complainant, John P. (“Jack”) Hains of the law firm Lipsitz Green Scime Cambria LLP, asking to confirm the remedy requested. Apparently having received no response, the Center sent another e-mail to Mr. Hains, on March 13, 2007, stating: “Please reply to email below so we may proceed with the case”. On March 13, 2007, Mr. Hains replied via e-mail as follows: “Yes, indeed, our client request [sic] cancellation of the conflicting domain name”.

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 March 14, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 3, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 5, 2007.

The Center appointed Douglas M. Isenberg as the sole panelist in this matter on April 17, 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

Complainant is the owner of a federal trademark registration, U.S. Reg. No. 2,684,274, for the mark FLIRT4FREE, for use in connection with “entertainment services, namely, providing entertainment services in the nature of adult-oriented entertainment provided over a global computer network,” registered February 4, 2003, first used in commerce February 10, 1999.

Respondent registered the Disputed Domain Name on January 13, 2004, and, according to Complainant, is using it in connection with a website containing “links to all sorts of commercial sites, and each click to such link no doubt earns Respondent a fee”. The Panel’s review¹ of the website at “www.flir4free.com” on May 1, 2007, reveals numerous miscellaneous links, including many related to sex, video and chatting, such as “Sexlive,” “Sexwoman,” “Free Video Chat,” “Black Dating,” “Singles” and more.

5. Parties’ Contentions

A. Complainant

Complainant contends, in relevant part, as follows:

- The Disputed Domain Name is confusingly similar to Complainant’s FLIRT4FREE trademark because they differ by only a single character, the absence of the letter “t” from the Disputed Domain Name.

- The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because because “[t]here is no indication that at any time in the past Respondent has offered any goods or services that might be suggested by the domain name, nor is there any indication that the Respondent has had any commercial connection, individually or through an entity, with Complainant’s trademark or any mark that is similar thereto.”

- The Disputed Domain Name was registered and is being used in bad faith because there is “very great similarity” between the Disputed Domain Name and Complainant’s trademark, the Disputed Domain Name “makes no sense except to appear very similar to Complainant’s”, “[n]o goods or services that would seem to be suggested by the domain name are available on the site”, “it appears obvious that Respondent chose his domain name to mimic Complainant’[s] domain name” and “[u]se of an apparently bogus address also lends credence to the bad faith of Respondent in registering his domain name”.

B. Respondent

Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. Policy, Paragraph 4(a).

A. Identical or Confusingly Similar

Based upon the federal trademark registration in the United States of America cited by Complainant, it is clear that Complainant has rights in the mark FLIRT4FREE.

As to whether the Disputed Domain Name is identical or confusingly similar to the mark FLIRT4FREE, the relevant comparison to be made is with the second-level portion of the Domain Name only (i.e., “flir4free”), as it is well-established that the top-level domain name (i.e., “.com”) should be disregarded for this purpose. See, e.g., The Forward Association, Inc., v. Enterprises Unlimited, NAF Claim No. FA0008000095491 (“[N]either the beginning of the URL (http://www.), nor the TLD (.com) have any source indicating significance. Those designations are merely devices that every Internet site provider must use as part of its address”); see also United States Patent and Trademark Office’s Trademark Manual of Examination Procedures (3d ed.) § 1215.02 (“neither the beginning of the URL (‘http://www.’) nor the TLD have any source-indicating significance”).

The Disputed Domain Name is not identical to a trademark in which Complainant has rights, as the second-level portion of the Domain Name (“flir4free”) differs by its absence of the letter “t”. However, Complainant need prove only that the Domain Name is “confusingly similar” to a mark in which Complainant has rights. The panel agrees with Complainant’s statement that “Respondent’s domain name makes no sense except to appear very similar to Complainant’s”. Further, “the difference of a single letter in [this] domain name – particularly where, as here,… the difference creates a Domain Name that appears to be nonsensical – is insignificant for purposes of confusing similarity”. Hunter Douglas Industries, BV, and Hunter Douglas Window Fashions, Inc. v. Erik Little, WIPO Case No. D2005-0460. See also Six Continents Hotels, Inc. v. Tripod UK Ltd, WIPO Case No. D2006-0041 (confusion is “obvious” despite the absence of a single letter where the domain name “sounds identical to the Complainant’s trademark” and “immediately evokes” Complainant).

Accordingly, the Domain Name is confusingly similar to Complainant’s FLIRT4FREE trademark and the Panel is satisfied that Complainant has proven the first element of the Policy.

B. Rights or Legitimate Interests

Complainant alleges that Respondent has no rights or legitimate interests in the Domain Name because “[t]here is no indication that at any time in the past Respondent has offered any goods or services that might be suggested by the domain name, nor is there any indication that the Respondent has had any commercial connection, individually or through an entity, with Complainant’s trademark or any mark that is similar thereto”.

Under the Policy, “a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP”. “WIPO Overview of WIPO Panel Views on Selected UDRP Questions,” paragraph 2.1.

Although Complainant’s allegations can be described at best as loosely supportive of an inference of lack of Respondent’s rights or legitimate interests, without any evidence by Respondent in support of its rights or legitimate interests in the Domain Name, the Panel is satisfied that Complainant has proven the second element of the Policy.

C. Registered and Used in Bad Faith

Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has 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 the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).

In this case, Complainant does not allege with specificity which, if any, of the four factors exists and establishes bad faith. Rather, Complainant alleges broadly that bad faith exists because there is “very great similarity” between the Disputed Domain Name and Complainant’s trademark, the Disputed Domain Name “makes no sense except to appear very similar to Complainant’s”, “[n]o goods or services that would seem to be suggested by the domain name are available on the site”, “it appears obvious that Respondent chose his domain name to mimic Complainant’[s] domain name” and “[u]se of an apparently bogus address also lends credence to the bad faith of the Respondent in registering his domain name.”

Although Complainant cites no decisions under the Policy in support of its position on bad faith (or, for that matter, either of the other elements of the Policy), the Panel finds that the Disputed Domain Name is “so obviously connected with” Complainant that Respondent’s actions suggest “opportunistic bad faith” in violation of the Policy. Research In Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492.

Therefore, the Panel is satisfied that Complainant has proven the third element of the Policy.

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, as requested by Complainant, the domain name <flir4free.com> be cancelled.

Douglas M. Isenberg
Sole Panelist

Dated: May 1, 2007

¹ “A panel may visit the internet site linked to the disputed domain name in order to obtain more information about the respondent and the use of the domain name.” “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, paragraph 4.5