Branson Landing, LLC v. Danny Justiniano
Claim Number: FA0111000102165
Complainant is Branson Landing, LLC, Branson, MO (“Complainant”), represented by Wade Kerrigan of Blackwell Sanders Peper Martin, LLP. Respondent is Danny Justiniano, Branson, MO (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bransonlanding.com>, <bransonlandingconventioncenter.com>, and <bransonlandingexhibitionconventioncenter.com>, registered with Network Solutions.
On December 19, 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 November 13, 2001; the Forum received a hard copy of the Complaint on November 15, 2001.
On November 19, 2001, Network Solutions confirmed by e-mail to the Forum that the domain names <bransonlanding.com>, <bransonlandingconventioncenter.com>, and <bransonlandingexhibitionconventioncenter.com> are registered with Network Solutions and that Respondent is the current registrant of the names. Network Solutions has verified that Respondent is bound by the Network Solutions 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 November 19, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 10, 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 firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org 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 names be transferred from the Respondent to the Complainant.
Complainant has rights in the BRANSON LANDING and BRANSON LANDING CONVENTION CENTER marks by way of common law trademark and a pending trademark application. The disputed domain names <bransonlanding.com> and <bransonlandingconventioncenter.com> are identical to Complainant's marks. The disputed domain name <bransonlandingexhibitionconventioncenter.com> is confusingly similar to Complainant's marks.
Respondent has no rights or legitimate interests in respect of the disputed domain names.
Respondent registered and has used the disputed domain names in bad faith.
Respondent has not submitted a Response in this proceeding.
In May 2001, Complainant notified the City of Branson that it intended to develop a tract of land in Branson that was to include a convention center, hotel, restaurant, and retail space. The development project was known and promoted as BRANSON LANDING.
On June 18, 2001, Complainant announced its plans during a meeting of the Branson City Board of Alderman and Taney County Commission at City Hall. On June 19, Respondent, a potential hotel developer who was present at the meeting, registered the domain names <bransonlanding.com>, <bransonlandingconventioncenter.com>, and <bransonlandingexhibitionconventioncenter.com>.
Subsequently, Complainant offered to purchase the <bransonlanding.com> domain name for $2,000 and preferential positioning during the development process. Respondent, according to Complainant, declined the offer and informed Complainant that he would accept no less than "six figures" for the domain names. Complainant contends that Respondent lost interest in the development project because he viewed the opportunity to sell the domain names as more rewarding.
At the time the complaint was filed, the disputed domain names were only being used to display an "under construction" page.
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
Complainant asserts that it holds common law trademark rights in the BRANSON LANDING and BRANSON LANDING CONVENTION CENTER marks. See Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (finding that the Policy does not require “that a trademark be registered by a governmental authority for such rights to exist”); See also Smart Design LLC v. Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy 4(a)(i) does not require Complainant to demonstrate ‘exclusive rights,’ but only that complainant has a bona fide basis for making the complaint in the first place). Because Respondent has not refuted this claim, the Panel may accept it as true. See 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”).
As further evidence of its rights in the marks, Complainant has presented copies of pending trademark applications. The Panel finds this is also supportive of Complainant's claim of right. See SeekAmerica Networks Inc. v. Tariq Masood and Solo Signs, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the Complainant's trademark or service mark be registered by a government authority or agency for such rights to exist; rights in the mark can be established by pending trademark applications).
The domain name <bransonlandingexhibitionconventioncenter.com> is confusingly similar to Complainant's marks. The inclusion of the generic word "exhibition" does not distinguish the disputed domain name from the business associated with Complainant's marks. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term); see also Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark).
The domain names <bransonlanding.com> and <bransonlandingconventioncenter.com> are identical to Complainant's marks. The addition of ".com" to the marks does not significantly alter the identity of the disputed domain names so as to distinguish them from the marks. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Because the Respondent has failed to submit a Response in this proceeding, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain names. 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).
There is no evidence that Respondent is commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii), nor that Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert consumers pursuant to Policy ¶ 4(c)(iii). See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. & D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any right or interest it may possess).
Further, Respondent's attempt to sell the disputed domain names to Complainant cannot constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i). See Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark).
The Panel finds that Policy ¶ 4(a)(ii) has been met, and that Respondent has no rights or legitimate interests in respect of the disputed domain names.
Registration and Use in Bad Faith
According to Complainant, Respondent offered to sell the disputed domain names for an amount of at least "six figures." This is clear evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Matmut v. Tweed, D2000-1183 (WIPO Nov. 27, 2000) (finding bad faith under Policy paragraph 4(b)(i) where Respondent stated in communication with Complainant, “if you are interested in buying this domain name, we would be ready to sell it for $10,000”); see also Dollar Rent A Car Sys. Inc. v. Jongho, FA 95391 (Nat. Arb. Forum Sept. 11, 2000) (finding that the Respondent demonstrates bad faith by registering the domain name for the purpose of transferring the domain name in the amount of $3,000, an amount in excess of out of pocket costs).
In addition to Respondent's attempts at selling the disputed domain names to Complainant, its practice of registering multiple domain names that infringe upon Complainant's marks also evinces bad faith use and registration under Policy ¶ 4(b)(ii). See YAHOO! Inc. v. Syrynx, Inc. & Hamilton, D2000-1675 (WIPO Jan. 30, 2001) (finding bad faith pattern pursuant to Policy 4(b)(ii) in Respondent's registration of two domain names incorporating Complainant's YAHOO! mark); see also Caterpillar Inc. v. Miguel Miyar Jr., FA 95623 (Nat. Arb. Forum Dec. 14, 2000) (finding that registering multiple domain names in a short time frame indicates an intention to prevent the mark holder from using its mark and provides evidence of a pattern of conduct).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.
Accordingly, it is Ordered that the <bransonlanding.com>, <bransonlandingconventioncenter.com>, and <bransonlandingexhibitionconventioncenter.com> domain names be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: December 24, 2001
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