Veniece Newton v. Trevon Angulo
Claim Number: FA0706001011424
Complainant is Veniece Newton
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fashionfrenzytv.com>, registered with Go Daddy Software, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On June 26, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 16, 2007 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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.
A. Complainant makes the following assertions:
1. Respondent’s <fashionfrenzytv.com> domain name is confusingly similar to Complainant’s FASHION FRENZEY mark.
2. Respondent does not have any rights or legitimate interests in the <fashionfrenzytv.com> domain name.
3. Respondent registered and used the <fashionfrenzytv.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Veniece Newton, has registered the FASHION
FRENZEY mark with the United States Patent and Trademark Office (“USPTO”) (Reg.
No. 2,758,555 issued
domain name was registered on
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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of 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.
Complainant’s FASHION FRENZEY mark is registered with the
USPTO. The federal registration of the
mark satisfies Policy ¶ 4(a)(i)’s requirement that
Complainant establish rights in the mark. See
Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
Respondent’s <fashionfrenzytv.com> domain name removes the letter “e” from Complainant’s mark and then adds the generic, descriptive term “tv,” which describes a service provided by the Complainant. These slight adjustments do not distinguish the disputed domain name from Complainant’s mark. Therefore, Complainant has satisfied the further requirement under Policy ¶ 4(a)(i) that the disputed domain name be confusingly similar to Complainant’s mark. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Policy ¶ 4(a)(ii) requires that Complainant present a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Complainant’s assertion in this case that Respondent holds no rights or legitimate interests in the disputed domain name meets this requirement and shifts the burden to Respondent to show that rights exist. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); 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 has not met the burden of proof under Policy ¶ 4(a)(ii) because no Response was submitted. Under these circumstances, the presumption is
that Respondent has failed to establish rights or legitimate interests in the
disputed domain name. See Am. Express Co. v. Fang Suhendro,
FA 129120 (Nat. Arb. Forum
Under Policy ¶ 4(c)(i), a respondent’s demonstrable preparations for use of the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute can be used to illustrate rights or legitimate interests in the disputed domain name. Per the evidence, Respondent’s correspondence with Complainant revealed that any alleged preparations for use of the disputed domain name in connection with a bona fide offering of fashion services came only after Respondent was notified of the dispute. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that when the respondent declares its intent to develop a website, “[Policy ¶] 4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [Respondent] of the dispute’”); see also S. Co. v. Doms, D2000-0184 (WIPO May 8, 2000) (“While Respondent’s June 14, 1999, e-mail message makes reference to its ‘global long-term development and communication plans,’ there is no evidence in the record to support a determination of Respondent’s 'use of, or demonstrable preparations to use,' the domain name, within the meaning of [Paragraph 4(c)(i)] of the Policy.”). The Panel determines that Respondent has no rights or legitimate interests in the domain name under Policy ¶ 4(c)(i).
Further, the Panel determines that nothing in the evidence
provided, including the WHOIS record, leads to an inference that Respondent, listed
as “Trevon Angulo” in the WHOIS record, is commonly known by the <fashionfrenzytv.com> domain name.
Therefore, Respondent also holds no rights
or legitimate interests under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy
¶ 4(c)(ii) does not apply); see also Am. Online, Inc. v. World
Photo Video & Imaging Corp., FA
109031 (Nat. Arb. Forum
The evidence provided to substantiate the Complaint shows that Respondent used the disputed domain name to generate revenue by the use of advertising sponsored by Google AdSense for Domains. Respondent also offered to sell the domain to Complainant in the amount of $3,000. The Panel finds this conduct inconsistent with the legitimate noncommercial or fair use requirement of Policy ¶ 4(c)(iii). Thus, the Panel concludes that Respondent has also failed to establish rights or legitimate interests under Policy ¶ 4(c)(iii). See De La Rue Holdings PLC v. Video Images Prods. L.L.C., FA 196054 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent was not using the <delaru.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because the respondent was using the domain name to “subject unsuspecting users to a barrage of unsolicited [pop-up] advertisements,” presumably for commercial benefit); see also Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The evidence provided by Complainant persuasively shows that Respondent registered and used the disputed domain primarily for the purpose of selling it to Complainant, the rightful owner of the mark. Complainant provides evidence of correspondence in which it Respondent attempted to sell the disputed domain for $3,000; although Respondent claimed the charge would normally be $5,000. Further, when Complainant rejected this offer of sale, Respondent threatened to either open a competing fashion business at the disputed domain name or sell the disputed domain name to the first person who would pay the $3,000. As the sale offer appears to be far in excess of any out-of-pocket expenses related to the domain name, and Respondent threatened Complainant’ business, the Panel finds Respondent registered and used the domain name in bad faith consistent with Policy ¶ 4(b)(i). See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)); see also Dollar Rent A Car Sys., Inc. v. Jongho, FA 95391 (Nat. Arb. Forum Sept. 11, 2000) (finding that the respondent demonstrated bad faith by registering the domain name with the intent to transfer it to the complainant for $3,000, an amount in excess of its out of pocket costs); see also Ave., Inc. v. Guirguis, D2000-0013 (WIPO Mar. 19, 2000) (finding bad faith where the respondent informed the complainant of the intent to form a business in the same field as the complainant, but at the same time, offered the domain name for sale to the complainant).
Complainant alleges that Respondent’s website at the <fashionfrenzytv.com> domain name
displayed advertising sponsored by Google AdSense for Domains until Google was provided
with proof of Complainant’s trademark registration. Under Policy ¶ 4(b)(iv),
Respondent’s use of the disputed domain name to arguably generate advertising
revenue is consistent with a finding of bad faith because the disputed domain
name was likely to cause confusion with Complainant’s mark. See
Am. Online, Inc. v. Tencent Commc’ns Corp.,
FA 93668 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fashionfrenzytv.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: August 3, 2007
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