J Jargon Co. v. Keyword Marketing, Inc.
Claim Number: FA0708001058866
Complainant is J Jargon Co. (“Complainant”), represented by Bridget
C. Heffernan, 255 South Orange Ave., Suite 1401, Orlando, FL 32801. Respondent is Keyword Marketing, Inc. (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <menopausethemusica.com>, registered with Domaindoorman, Llc.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 7, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 8, 2007.
On August 13, 2007, Domaindoorman, Llc confirmed by e-mail to the National Arbitration Forum that the <menopausethemusica.com> domain name is registered with Domaindoorman, Llc and that Respondent is the current registrant of the name. Domaindoorman, Llc has verified that Respondent is bound by the Domaindoorman, 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").
14, 2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 4, 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 September 11, 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 <menopausethemusica.com> domain name is confusingly similar to Complainant’s MENOPAUSE THE MUSICAL mark.
2. Respondent does not have any rights or legitimate interests in the <menopausethemusica.com> domain name.
3. Respondent registered and used the <menopausethemusica.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, J Jargon Co., holds a trademark registration
with the United States Patent and Trademark Office (“USPTO”) for the MENOPAUSE
THE MUSICAL mark (Reg. No. 2,962,504 issued June 14, 2007) in connection with
production and exhibition of stage plays and musical shows. Complainant began presenting the MENOPAUSE
THE MUSICAL play in 2001 in
Respondent registered the <menopausethemusica.com> domain name on June 17, 2007. The disputed domain name resolves to a website featuring sponsored links to third-party commercial websites, some of which compete directly with Complainant.
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 asserts rights in the MENOPAUSE THE MUSICAL mark
through registration with the USPTO. The
Panel finds that Complainant’s timely registration and subsequent extensive use
of the mark establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The disputed domain name that Respondent registered contains
the dominant features of Complainant’s MENOPAUSE THE MUSICAL mark,
omits the letter “l” and adds the generic top-level domain (“gTLD”)
“.com.” The Panel finds that such
alterations to Complainant’s registered mark fail to sufficiently distinguish
the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i). See State
Farm Mut. Auto. Ins. Co. v. Try Harder &
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established with extrinsic proof in this
proceeding that it has rights and legitimate interests in the mark contained in
misspelled form in the disputed domain name.
Complainant asserts that Respondent has no such rights to or legitimate
interests in the <menopausethemusica.com>
domain name. Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to show that it does possess
rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). In this case, Complainant has made out a prima facie case under Policy ¶ 4(a)(ii). See Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376
The disputed domain name resolves to a website that offers Internet users links to third-party, commercial websites, some of which compete directly with Complainant. The Panel finds that such use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate, noncommercial use pursuant to Policy ¶ 4(c)(iii). See Compaq Info. Techs. Group v Jones, FA 99091 (Nat. Arb. Forum Oct. 4, 2001) (finding that the respondent had no rights or legitimate interests in a domain name that it used to redirect Internet users to a commercial website as part of that website’s affiliate program, where the resultant website contained banner ads as well as various links to offers for free merchandise, including merchandise from the complainant's competitor); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
Complainant also asserts that Respondent is not commonly
known by the disputed domain name. The
Panel finds, absent contrary evidence, that Respondent is not commonly known by
the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent acted in bad faith by registering and using a domain name that contains a misspelled version of Complainant’s mark. Respondent’s disputed domain name resolves to a website that offers links to competing websites. The Panel finds that such use amounts to a disruption of Complainant’s business, which supports a finding of registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Respondent’s disputed domain name resolves to a website featuring third-party links to websites that compete with Complainant. Presumably, Respondent receives click-through revenue from its diversionary use of the disputed domain name. The Panel finds that Respondent’s use amounts to an attraction for commercial gain, which evinces registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
The Panel finds that Complainant 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 <menopausethemusica.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: September 19, 2007
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