AT&T Knowledge Ventures,
L.P. v. Cem Ersoy c/o PROJECT
Claim Number: FA0708001063475
Complainant is AT&T Knowledge Ventures, L.P. (“Complainant”), represented by Purvi J. Patel, of Haynes and
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <belltelecom.us>, registered with Melbourne It Ltd.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On August 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 12, 2007 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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 name be transferred from Respondent to Complainant.
<belltelecom.us> domain name
is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <belltelecom.us> domain name.
3. Respondent registered and used the <belltelecom.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Knowledge Ventures, L.P., is the largest communications holding company in the
world. In connection with its
communication services, Complainant holds several trademark registrations with
the United States Patent and Trademark Office (“USPTO”) for the
Respondent registered the <belltelecom.us> domain name 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 the Complainant's undisputed representations pursuant to Paragraphs 5(f), 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 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; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Identical and/or Confusingly Similar
The Panel finds that Complainant’s registration of the
Respondent’s disputed domain name contains Complainant’s entire mark, adds the term “telecom,” which obviously relates to Complainant’s business, and adds the country-code top-level domain (“ccTLD”) “.us.” The Panel finds that these additions to Complainant’s mark fail to sufficiently distinguish the disputed domain name from the mark for the purposes of satisfying Policy ¶ 4(a)(i), and thus the disputed domain name is confusingly similar to the mark. See Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark); 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 finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Under Policy ¶ 4(a)(ii), Complainant must
present a prima facie case that
Respondent lacks rights and legitimate interests in the <belltelecom.us> domain name. Once Complainant establishes such a case, the
burden shifts to Respondent to demonstrate rights and legitimate interests with
respect to the disputed domain name. The
Panel finds that Complainant has met its burden, and therefore has shifted the
burden to Respondent. 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 G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Because Complainant has
established rights to the BELL mark and Respondent has not come forward with
any evidence showing it is the owner or beneficiary of a mark identical to the <belltelecom.us> domain name,
Complainant has satisfied Policy ¶ 4(c)(i).
See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum
Respondent is using the disputed domain name to redirect unsuspecting Internet users to a website featuring competitive and similar services as those offered by Complainant. The Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See Or. State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of law-related books under Complainant's name is not a bona fide offering of goods and services because Respondent is using a mark confusingly similar to the Complainant's to sell competing goods.”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
that Respondent is not commonly known by the disputed domain name. A review of Respondent’s WHOIS information
reveals that the registrant of the <belltelecom.us>
domain name is “Cem Ersoy c/o PROJECT Bell Telecom.” Given the lack of evidence to the contrary,
the Panel finds that Respondent is not commonly known by the disputed domain
name pursuant to Policy ¶ 4(c)(iii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum
Furthermore, Respondent offered to sell the disputed domain name registration to Complainant. Respondent’s offer to sell the disputed domain name, which is confusingly similar to Complainant’s mark, evidences its lack of rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii). See 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.”); see also 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 satisfied.
Registration and Use in Bad Faith
Respondent is using the disputed domain name
to redirect Internet users to its own website, which features services competitive
with, and similar to, those offered by Complainant. The Panel finds that Respondent’s use is a
disruption of Complainant’s business, which suggests registration and use in
bad faith pursuant to Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters,
D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive
relationship between the complainant and the respondent, the respondent likely
registered the contested domain name with the intent to disrupt the
complainant's business and create user confusion); see also S. Exposure v. S. Exposure, Inc.,
FA 94864 (Nat. Arb. Forum
Respondent’s disputed domain name resolves to Respondent’s own website, wherein Respondent presumably receives financial benefit. Respondent’s resultant website also displays competing services that are similar to Complainant’s services, thus increasing the likelihood of confusion among unsuspecting Internet users. The Panel finds that Complainant’s purposeful misdirection of unsuspecting Internet users for commercial gain evinces registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated UDRP ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant).
contends that Respondent’s offer to transfer the disputed domain name
registration for $9000 demonstrates Respondent’s bad faith registration and use
of the domain name. The Panel finds that
Respondent’s offer insinuates that the domain name was registered primarily for
the purpose of selling the domain name registration to Complainant for valuable
consideration in excess of Respondent’s out-of-pocket costs directly related to
the domain name, which evidences registration and use in bad faith under Policy
¶ 4(b)(i). See Little Six, Inc v. Domain For
Having established all three elements required under the U.S. Department of Commerce’s usTLD Dispute Resolution Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <belltelecom.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 3, 2007
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