Ritchie Bros. Auctioneers (
Claim Number: FA0707001029066
Complainant is Ritchie Bros. Auctioneers (Canada) Ltd. (“Complainant”), represented by Michael
F. Fleming, of Larkin Hoffman Daly & Lindgren, Ltd.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rbauctioneer.com>, registered with Capitoldomains, LLC.
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.
Tyrus R. Atkinson, Jr., 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, Capitoldomains, LLC confirmed by e-mail to the National Arbitration Forum that the <rbauctioneer.com> domain name is registered with Capitoldomains, LLC and that Respondent is the current registrant of the name. Capitoldomains, LLC has verified that Respondent is bound by the Capitoldomains, LLC 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 11, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 31, 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.
On August 3, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <rbauctioneer.com> domain name is confusingly similar to Complainant’s RB AUCTION mark.
2. Respondent does not have any rights or legitimate interests in the <rbauctioneer.com> domain name.
3. Respondent registered and used the <rbauctioneer.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ritchie Bros. Auctioneers (
Respondent registered the <rbauctioneer.com> domain name on February 1,
2007. Respondent’s disputed domain name
resolves to a website that displays hyperlinks for various unrelated
third-party websites, as well as to Complainant’s own website. Additionally, Respondent has been the
respondent in several other UDRP decisions in which the disputed domain names
were transferred from Respondent to the respective complainants in those
proceedings. See Chevron Intellectual Property LLC v.
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 USPTO sufficiently establishes Complainant’s rights in the RB AUCTION mark. See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
The Panel finds that Respondent’s <rbauctioneer.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 adds the suffix “eer” to the
mark, which has an obvious connection to the Complainant’s business as an
auctioneer service provider.
Furthermore, Complainant operates a website that incorporates its mark,
the <rbauction.com> domain name.
The addition of the generic top-level domain does nothing to relieve the
confusing similarity, as a top-level domain is required for all domain
names. See Surface Prot. Indus., Inc. v. Webposters,
D2000-1613 (WIPO Feb. 5, 2001) (finding the domain name
<mannbrothers.com> confusingly similar to the complainant’s MANN BROTHERS
mark “so as to likely confuse Internet users who may believe they are doing
business with Complainant or with an entity whose services are endorsed by,
sponsored by, or affiliated with Complainant; hence, satisfying the confusing
similarity requirement”); see also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must first establish that Respondent lacks rights and legitimate interests in the <rbauctioneer.com> domain name. However, 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 domian name. In this case, the Panel finds Complainant has presented a prima facie case. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Respondent’s WHOIS information does not indicate, and there is nothing in the record to suggest, that Respondent is commonly known by the <rbauctioneer.com> domain name. Furthermore, Complainant asserts 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 Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent is using the <rbauctioneer.com> domain name to display a search engine as well as a hyperlinks to unrelated third-party websites. The Panel presumes that Respondent is using the disputed domain name to earn click-through fees, and thus finds that Respondent has not made a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Trans Global Tours, LLC v. Yong Li, FA 196166 (Nat. Arb. Forum Nov. 1, 2003) (finding that the respondent was not using the domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because it was diverting Internet users to a search engine with pop-up advertisements).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
In light of the uncontested evidence presented by
Complainant, the Panel finds that Respondent receives click-through fees for
the hyperlinks displayed on the website that resolves from the <rbauctioneer.com> domain name. Also, the Panel 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 matching
website. To commercially benefit from
the use of such tactics constitutes bad faith registration and use under Policy
¶ 4(b)(iv). See Bank of Am. Corp. v.
Respondent has also been the respondent in several other
UDRP proceedings in which the disputed domain names were transferred from
Respondent to the respective complainants in those proceedings. See
Chevron Intellectual Property LLC v.
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 <rbauctioneer.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 13, 2007
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