Oddworld Inhabitants Inc v. Michelle Moore d/b/a oddworldinhabitants.com
Claim Number: FA0110000100312
Complainant is Oddworld Inhabitants, Inc., San Luis Obisbo, CA ("Complainant") represented by Kevin Costanza, of Seed IP Law Group, PLLC. Respondent is Michelle Moore d/b/a oddworldinhabitants.com, West New York, NJ ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oddworldinhabitants.com>, registered with eNom, Inc.
On, November 5, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist. The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on October 4, 2001; the Forum received a hard copy of the Complaint on October 8, 2001.
On October 9, 2001, eNom, Inc. confirmed by e-mail to the Forum that the domain name <oddworldinhabitants.com> is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 9, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 29, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
The <oddworldinhabitants.com> domain name is identical to Complainant’s ODDWORLD INHABITANTS United States, Canadian and European Community registered trademarks.
Respondent has no rights or legitimate interests in respect to the <oddworldinhabitants.com> domain name.
Respondent registered and used the <oddworldinhabitants.com> domain name in bad faith.
No response was received.
Since 1997, Complainant has used its ODDWORLD INHABITANTS trademark in connection with its computer gaming software. Complainant has been incorporated in the state of Delaware since 1997 under the name ODDWORLD INHABITANTS, INC. Complainant is also the owner of other trademarks containing the word ODDWORLD.
Respondent registered the <oddworldinhabitants.com> domain name on January 8, 2001. To Complainant’s knowledge, Respondent has not made any use or prepared to use the <oddworldinhabitants.com> domain name in any way other than to offer to sell the domain name to Complainant. Complainant offered to pay Respondent’s transfer fees related to the disputed domain name as well as reimbursement of Respondent’s registration fees however Respondent refused Complainant’s offer.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or Confusingly Similar
The <oddworldinhabitants.com> domain name is identical to Complainant’s ODDWORLD INHABITANTS registered trademark, as the domain name wholy incorporates Complainant’s mark. See Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark); see also Amherst v. IFC Corp., FA 96768 (Nat. Arb. Forum Apr. 3, 2001) (finding that Respondent’s domain name <customcommerce.com> is identical to Complainant’s CUSTOM COMMERCE trademark registration).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Respondent has failed to submit a response in this proceeding. It is well established that Panels may presume that a Respondent has no rights or legitimate interests in a disputed domain name where the Respondent fails to submit a response. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by the Complainant that the Respondent has no right or legitimate interest is sufficient to shift the burden of proof to the Respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to use the domain name in any way other than to offer it for sale to Complainant further evidences Respondent’s lack of rights or legitimate interests in respect to the disputed domain name. See J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit).
Respondent’s passive holding of the disputed domain name also establishes Respondent’s lack of rights or legitimate interests with respect to the <oddworldinhabitants.com> domain name. See American Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where Respondent merely passively held the domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied, and Respondent has no rights or legitimate interests in respect to the <oddworldinhabitants.com> domain name.
Registration and Use in Bad Faith
Respondent’s offer to sell the <oddworldinhabitants.com> domain name to Complainant for valuable consideration in excess of Respondent’s out-of-pocket expenses establishes Respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i). See Little Six, Inc v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith); see also Booz-Allen & Hamilton Inc. v. Servability Ltd, D2001-0243 (WIPO Apr. 5, 2001) (finding bad faith where Respondent, a domain name dealer, rejected Complainant’s nominal offer of the domain in lieu of greater consideration).
Respondent’s passive holding of the disputed domain name further supports a finding of bad faith pursuant to Policy ¶ 4(a)(iii). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.
Accordingly, it is Ordered that the <oddworldinhabitants.com> domain name be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: November 14, 2001
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