Ritchie Bros. Auctioneers (
Claim Number: FA0707001029060
Complainant is Ritchie Bros. Auctioneers (Canada) Ltd. (“Complainant”), represented by Michael F. Fleming, of Larkin Hoffman Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431-1194. Respondent is NA c/o The data in Bulkregister.com's WHOIS database is p (“Respondent”), Bulkregister.com for information purposes only, that is, to, obtaining information about or related to a domain name regi, does not guarantee its ac ou.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <rbauctions.com>, registered with Enom, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 6, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 9, 2007.
On July 9, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <rbauctions.com> domain name 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 July 16, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 6, 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 postmaster@rbauctions.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 8, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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 <rbauctions.com> domain name is confusingly similar to Complainant’s RB AUCTION mark.
2. Respondent does not have any rights or legitimate interests in the <rbauctions.com> domain name.
3. Respondent registered and used the <rbauctions.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ritchie Bros. Auctioneers (
Respondent registered the <rbauctions.com> domain name on April 12, 2001. Respondent’s disputed domain name resolves to a website that displays hyperlinks for several unrelated websites, as well as to Complainant’s own website.
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.
The Panel finds that Complainant’s trademark registration
with the CIPO and the USPTO sufficiently establishes Complainant’s rights in
the RB AUCTION mark. The fact that
Complainant’s RB AUCTION mark was registered in the
Furthermore, the Panel finds that Respondent’s <rbauctions.com> domain name is confusingly
similar to Complainant’s RB AUCTION mark under Policy ¶ 4(a)(i) as it contains
Complainant’s entire mark and simply removes the space between the terms and
pluralizes the word “auction” by adding an ‘s’ to it. The addition of the generic top-level domain
name does nothing to eliminate the confusing similarity, as a top-level domain
is required for all domain names. Thus,
the Panel finds that Respondent’s disputed domain name is confusingly similar
to Complainant’s mark under Policy ¶ 4(a)(i).
See Gurney’s Inn
Resort & Spa Ltd. v. Whitney, FA 140656 (Nat. Arb. Forum Feb. 19, 2003)
(“Punctuation and spaces between words are not significant in determining the
similarity of a domain name and a mark because punctuation and spaces are not
reproducible in a domain name.”); see
also Cream Pie Club v. Halford,
FA 95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that “the addition of an ‘s’
to the end of the complainant’s mark, ‘Cream Pie’ does not prevent the likelihood
of confusion caused by the use of the remaining identical mark. The domain name
<creampies.com> is similar in sound, appearance, and connotation”); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat.
Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant
when establishing whether or not a mark is identical or confusingly similar,
because top-level domains are a required element of every domain name.”).
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
First, Complainant must establish that Respondent lacks rights and legitimate interests in the <rbauctions.com> domain name. But once Complainant establishes a prima facie case, the burden of proof shifts to Respondent, who must then prove that it has rights or legitimate interests in the disputed domain name. In the case at hand, the Panel finds Complainant has presented a prima facie case under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also 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”).
There is nothing in the record that indicates, and Respondent’s WHOIS information does not suggest, that Respondent is commonly known by the <rbauctions.com> domain name. Moreover, Complainant asserts, and Respondent has not refuted, that Respondent is not authorized to use Complainant’s RB AUCTION mark and that Respondent is not licensed to use the mark in any way. See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question) Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question). Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent is using the <rbauctions.com> domain name to redirect
Internet users to a website under a different domain name which displays
several hyperlinks to unrelated websites as well as to Complainant’s own
website. The Panel presumes Respondent
is using the disputed domain name to earn click-through fees. Such use does not constitute a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii). See Seiko
Kabushiki Kaisha v. CS into Tech, FA
198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking
for products relating to the famous SEIKO mark, to a website unrelated to the
mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i),
nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Disney Enters., Inc.
v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the
respondent’s diversionary use of the complainant’s mark to attract Internet
users to its own website, which contained a series of hyperlinks to unrelated
websites, was neither a bona fide offering of goods or services nor a
legitimate noncommercial or fair use of the disputed domain names). Accordingly, the Panel finds that Respondent has not made a bona fide offering of goods or services,
or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) or
(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Based on the unchallenged evidence presented by Complainant,
the Panel finds that Respondent receives click-through fees for the hyperlinks
displayed on the website that resolves from the <rbauctions.com> domain name. The
Panel also finds that the disputed domain name is capable of creating a
likelihood of confusion as to Complainant’s affiliation with the disputed
domain name and corresponding website.
For Respondent to commercially benefit from such use constitutes bad
faith registration and use under Policy ¶ 4(b)(iv). See
Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21,
2000) (finding bad faith where the respondent directed Internet users seeking
the complainant’s site to its own website for commercial gain); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a
domain name that incorporates another's mark with the intent to deceive
Internet users in regard to the source or affiliation of the domain name is
evidence of bad faith.”).
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 relief shall be GRANTED.
Accordingly, it is Ordered that the <rbauctions.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 20, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum