Cincinnati Bell Inc. v. Roy lee c/o Dynadot Privacy
Case No. D2014-1271
1. The Parties Complainant is Cincinnati Bell Inc. of Cincinnati, Ohio, United States of America, represented by Frost Brown Todd LLC, United States of America.
Respondent is Roy lee c/o Dynadot Privacy of San Mateo, California, United States of America (“U.S.”).
3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2014. On July 24, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 25, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 7, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 27, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 28, 2014.
The Center appointed Martin Schwimmer as the sole panelist in this matter on September 2, 2014. 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 Cincinnati Bell Inc., an American publicly traded company providing a wide range of telecommunications products and services to residential and business customers in Ohio, Indiana and Kentucky. It uses the trademark CINCINNATI BELL as part of its legacy as a “Baby Bell”, one of the seven Regional Bell Operating Companies created in 1983 resulting from the break-up of American Telephone & Telegraph Co., Inc. As a result of the break-up, Complainant obtained concurrent user rights in the BELL and BELL Design trademarks.
Complainant owns U.S. registered trademark rights in CINCINNATI BELL and CINCINNATI BELL DIRECTORY, alleging first use dates and registration dates prior to the date of Respondent’s creation of the disputed domain name on May 11, 2012.
The Panel has no information about Respondent other than a registrant name of “Roy lee (sic) c/o Dynadot Privacy” (all contact information is that of the Registrar, Dynadot, LLC).
5. Parties’ Contentions A. Complainant Complainant alleges ownership of the CINCINNATI BELL trademark (the “Mark”). It provides printouts from the United States Patent and Trademark Office (“USPTO”) website showing copies of U.S. trademark registration No. 3,942,521 for the mark CINCINNATI BELL, registered on April 12, 2011, and U.S. trademark registration No. 2,891,520 for CINCINNATI BELL DIRECTORY, registered on October 5, 2004. The No. 3,942,521 registration alleges a date of first use of January 3, 1984. The registration alone entitles Complainant to a presumption of trademark use in the Mark as early as the application’s filing date of March 5, 2007.
As indicated by its registration, Complainant alleges use of the Mark since 1984. It also alleges ownership and use of the domain name . Complainant further alleges that the Mark is famous. However, it does not provide a specimen of use of the Mark, nor a WhoIs printout of its domain name, nor evidence of reputation of the Mark.
Complainant alleges that there is no relationship of any kind between it and Respondent. It further alleges that Respondent has no rights or legitimate interests in the disputed domain name, noting that Respondent’s name is not itself reflected in the disputed domain name.
Complainant alleges that the disputed domain name was registered in bad faith, noting that the second level of the disputed domain name is identical to its Mark, but for the omission of a second “n”. Respondent’s website, the home page of which is attached as Annex D of the Complaint, consists of a page depicting what are identified as “Sponsored Listings”. The listings include “E Mail Sign In”, “Bell Email Sign In”, “MSN Hot Mail Log In”, and “Verizon WebMail Log In”.
Complainant alleges that Respondent is, in effect, typosquatting, by creating the disputed domain name to capitalize on “typographical errors on [I]nternet broswers and will confuse consumers into believing that this domain name is associated with Cincinnati Bell and its products and services.”
B. Respondent Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly Similar Complainant’s registered trademark is the principal part of the disputed domain name. The second level of the disputed domain name is a word identical to Complainant’s trademark with the deletion of the letter “n”. The Panel notes that to the best of its knowledge, there is no independent meaning or usage of the letter string “cincinati”. The Panel takes notice of the fact that when one uses “cincinati” as a search term in the Google search engine, one is prompted “Do you mean: ‘cincinnati’?” Furthermore, the first two pages of the Google results (at least), all appear to be misspellings that refer to “Cincinnati”. In the absence of any other evidence or argument from Respondent, the Panel accepts that the disputed domain name is so similar to Complainant’s trademark that it could easily confuse the reader as being that of Complainant’s trademark, or lead to confusion that the disputed domain name had some association with Complainant’s trademark when in fact it does not. The Panel therefore concludes that the disputed domain name is confusingly similar to the registered trademark of Complainant.
B. Rights or Legitimate Interests The second legal ground to be demonstrated by Complainant, according to the provisions of the Policy, is Respondent’s absence of any rights or legitimate interests in the disputed domain name, per paragraph 4(c)(i) – (iii).
Previous UDRP panels have consistently held that it is sufficient for a complainant to prove a prima facie case that the respondent does not hold any rights or legitimate interests in the disputed domain name. (See, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110). Once a prima facie case is shown, the burden of production shifts to the respondent, who must demonstrate its rights or legitimate interests in the disputed domain name.
The Panel is satisfied that Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the Mark in a domain name or in any other manner.
Complainant alleges that there is no such connection, and that it sent a demand letter requesting that Respondent transfer the disputed domain name. The Panel further notes that these allegations, coupled with the name of the Respondent in the WhoIs record, as well as the absence of original content on the website to which the disputed domain name resolves, to the contrary, as a whole, support a prima facie case that Respondent holds no rights or legitimate interests in the disputed domain name.
In addition, Respondent has not submitted any reply to Complainant’s contentions.
Therefore the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith A complainant must establish that the domain name was registered and is being used in bad faith. The Policy sets out four non-exclusive circumstances, evidence of which may establish bad faith (see Policy, paragraph 4(b)(i)-(iv)):
(1) the respondent has registered or has 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 the respondent’s documented out-of-pocket costs directly related to the domain name; or
(2) the respondent 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 respondent has engaged in a pattern of such conduct; or
(3) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(4) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website 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 the respondent’s website or location or of a product or service on the respondent’s website or location.
As noted above, Complainant is entitled to certain presumptions in its CINCINNATI BELL mark as a result of its ownership of its federal registration, namely that the mark is distinctive, and that Respondent, presumably an American, is on constructive notice as to Complainant’s rights. While the record contains no documentary evidence as to Complainant’s reputation in its Mark, this registration, combined with Respondent’s use of the disputed domain name in connection with advertising communication services, appears to put the point of Respondent’s knowledge of Complainant’s prior rights beyond doubt.
Further, Respondent’s utilization of the disputed domain name in connection with email-based sponsored links, suggests that the disputed domain name was registered and is being used to intentionally attempt to attract Internet users to Respondent’s website by means of a likelihood of confusion with Complainant’s Mark, for commercial gain.
7. Decision 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 be transferred to Complainant.