FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:
I. Protected Rights Relied on by the Complainant
Founded in 1999 at <surveymonkey.com>, the Complainant is the world's leading provider of web-based survey solutions, trusted by millions of companies, organizations and individuals alike to gather the insights they need to make more informed decisions. With more than 43 million surveys completed and 2.2 million survey responses daily, the Complainant has received numerous awards & recognitions, including from Silicon Valley Innovation Summit and PCMag, and has been featured in widespread media outlets, including TechCrunch, MSNBC, Bloomberg, and CNNMoney. Its customers include 100% of the Fortune 100, as well as other businesses, academic institutions, and organizations of all shapes and sizes. Literally millions of people use SurveyMonkey for everything from customer satisfaction and employee performance reviews, to course evaluations and research of all types.
The Complainant contends it has extensive common law rights in the mark SURVEYMONKEY (the "Mark") since 2000 and owns multiple registrations for the Mark covering its services, including CTM Reg. No. 1044546.
The Complainant claims its trademark constitutes a famous and well-known mark, as is corroborated by the Alexa Traffic Rank of <SurveyMonkey.com>. Over the past 3 months from when the proceeding was initiated, based on a combination of average daily visitors and pageviews, the site is ranked within the top 500 sites worldwide, and within the top 250 sites in the United States. As of August 27, 2003--well prior to the first creation date of the disputed domain name--the <Surveymonkey.com> site was already one of the top 1000 sites across the Internet worldwide, according to Alexa Traffic Rank.
The Complainant provided evidence that as of September 4, 2014, the disputed domain name was being used to divert users looking for Complainant's site to the disputed domain name hosting pay-per-click advertisements, including highly related advertisements directly competitive with Complainant's business. Furthermore, on or about September 4, the Complainant had sent a notice letter to the Respondent and its parking company provider, through counsel, requesting of the Respondent to voluntarily transfer the disputed Domain Name, and of the parking provider to enforce its terms of service prohibiting such intellectual property violations. The Respondent ignored the notice letter, although the Respondent's parking provider blocked the domain name from its system pursuant to its terms of service.
In response, the Respondent moved the domain to another parking provider on September 11, and then tried to move it back again on September 24 to the parking company that had terminated its participation with respect to the subject domain for violation of its terms of service. The original complaint against the Respondent was then initiated on October 6 against the privacy/proxy service being used to mask the Respondent's identity. Although the registrar confirmed the domain name would be locked down during the pendency of the proceeding, the name servers were changed on or about October 22 to different name servers hosted on Searchreinvented.com, which is used to host commercial advertisements for domains that are set to expire but are pending renewal (as this domain was set to expire pending renewal on October 22). Currently the website shows highly related ads to the Complainant's business.
As to the Complainant’s contentions it claims that the disputed Domain name is nearly identical or confusingly similar to its trademark for it only includes a slight misspelling, i.e., the insertion of a double letter. This deliberate attempt to take advantage of a misspelling or typographical error does not negate confusing similarity, but rather shows the domain is confusingly similar by design.
Additionally, according to the Complainant the Respondent’s use of the confusingly similar Domain Name to redirect Internet users to a directory site with links to survey-related products and services similar to Complainant’s products and services further increases the likelihood of confusion. And the display of the Complainant's registered trademark on the site as the very first related link adjacent to highly related third party services only exacerbates the likelihood of confusion further by suggesting that all of the services are originating from the Complainant, or are somehow sponsored, affiliated with, or endorsed by the Complainant.
The Complainant contends that
the Respondent does not pretend to have any right or legitimate interest in the disputed domain name. The Respondent has not been authorized, licensed or permitted to register and use the domain. Furthermore, it has not been commonly known by the disputed domain name and it is not making a legitimate non-commercial use thereof.
The Respondent uses the disputed domain name that has no primary dictionary meaning to host a commercial website that provide competing web portal links and general advertisement links to a variety of businesses and products, none of which is a bona fide offering of goods or services under the Policy. The Respondent offers highly related services that are likely to cause confusion. Regardless of whether the Respondent consciously included links highly related or competitive with Complainant's services and mark, or whether an algorithm over which the Respondent had limited or no control generated them is irrelevant, because the advertisements undoubtedly take advantage of the Complainant's trademark.
Finally, according to the Complainant the disputed Domain Name has been registered and is being used in bad faith for typo-squatting and misspelling of well-known trademarks for pay-per-click revenue or affiliate marketing schemes is evidence of bad faith registration and use.
Moreover, the Respondent has chosen not to vindicate its conduct and provide an explanation of its choice of the domain name after the Complainant sent a notice letter prior to initiating this proceeding, which is further indicative of bad faith. The Respondent disrupts Complainant's business by intentionally attracting users for commercial gain by creating a likelihood of confusion with the Complainant. In fact, after the notice letter, the Complainant continued to show highly related ads by evading detection and moving the domain back and forth between two different parking companies. Under these facts, hiding behind a proxy and moving the domain to yet another parking company after receiving an actual notice letter is also evidence of bad faith intent to disrupt the Complainant's business.
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