In the recent domain name dispute decision of Netflix Inc. v. Domain Name (FA1287000, Nat. Arb. Forum November 9, 2009), a single member arbitrator was faced with a dispute over the domain www.netfilx.com. Netflix is the well known online movie rental service and owns multiple registrations for the NETFLIX mark. Netflix operates a web site at www.netflix.com. The disputed domain was registered on September 27, 1999 and Respondent failed to respond to 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.
In addressing the first element, the Panel found that Netflix had established its rights in the mark NETFLIX through its trademark registrations. The Panel noted that the domain was a misspelled version of the NETFLIX mark, where the “i” and “l” were switched. The Panel found that the domain was confusingly similar and that Netflix had satisfied this element.
Moving to the second element the Panel explained that Netflix made a prima facie case in support of its allegations. The Panel chose to analyze the facts presented despite Respondent’s failure to provide a response.
The Panel finds that registrant’s WHOIS information demonstrates that Respondent is not commonly known by the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), Respondent lacks rights and legitimate interests in the disputed domain name….Respondent’s <netfilx.com> domain name resolves to a blank website. The Panel finds that Respondent’s failure to make an active use of the disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Interestingly, the Panel notes that Netflix failed to allege abuse through the misspelling, but the Panel still found this to be relevant in the overall decision. The Panel found that Netflix satisfied this element as well.
Moving to the final element, the Panel found that the disputed domain remained inactive, and that such inactivity was evidence of bad faith. Additionally, the Panel found that the typosquatted version of Complainant’s mark NETFLIX also constituted bad faith. Ultimately, the Panel found that Netflix proved all three elements and ordered the domain be TRANSFERRED.