IQ Products Company v. Domain Adminstrator
Claim Number: FA0708001065187
Complainant is IQ Products Company (“Complainant”), represented by Cary
Rutland, 16212 State Highway 249, Houston, TX 77086. Respondent is Domain Adminstrator (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <airup.com>, registered with Network Solutions, Inc.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 28, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 17, 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@airup.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <airup.com> domain name is identical to Complainant’s AIRUP mark.
2. Respondent does not have any rights or legitimate interests in the <airup.com> domain name.
3. Respondent registered and used the <airup.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, IQ Products Company, is a
Respondent registered the <airup.com> 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 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 its rights in the AIRUP mark through its
registration of the mark with the USPTO.
While Complainant’s registration date of the AIRUP mark does not predate
Respondent’s registration date of the <airup.com>
domain name, previous UDRP panels have found that the relevant date of a
complainant’s rights in a registered mark is the filing date of the application
for the mark. Thus, the Panel finds that
Complainant has sufficiently established its rights in the AIRUP mark by virtue
of its registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See Planetary
Soc’y v. Rosillo, D2001-1228 (WIPO
Respondent’s <airup.com>
domain name is identical to Complainant’s AIRUP mark, as it incorporates
the exact mark and merely adds the generic top-level domain (“gTLD”) “.com”
onto the mark. It is well-established
under the UDRP that the addition of a gTLD is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is a required element
of all domain names. Therefore, the
Panel concludes that the <airup.com>
domain name is identical to Complainant’s AIRUP mark under Policy ¶ 4(a)(i). See Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant alleges that Respondent lacks rights and legitimate interests in the <airup.com> domain name. Once Complainant has made a prima facie case to prove this allegation, the burden then shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has established a prima facie case under the Policy. 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to file a response in this proceeding
raises the presumption that Respondent lacks rights and legitimate interests in
the disputed domain name. See Talk City, Inc. v. Robertson,
D2000-0009 (WIPO
Complainant asserts that
Respondent is not using the disputed domain name in any way. The Panel thus finds that such use does not
constitute 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) and indicates Respondent’s lack of rights and
legitimate interests in the <airup.com>
domain name. See Melbourne IT Ltd.
v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or
legitimate interests in the domain name where there is no proof that the
respondent made preparations to use the domain name or one like it in
connection with a bona fide offering of goods and services before notice
of the domain name dispute, the domain name did not resolve to a website, and
the respondent is not commonly known by the domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum
The Panel additionally finds that neither Respondent’s WHOIS
information, nor anything else in the record, indicate that Respondent is
commonly known by the disputed domain name, and Respondent is not authorized to
use Complainant’s AIRUP mark for any purpose.
Therefore, the Panel finds further evidence of Respondent’s lack of
rights and legitimate interests in the <airup.com>
domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Furthermore, Complainant’s assertion that it previously owned the <airup.com> domain name, yet inadvertently allowed the registration to lapse, also indicates that Respondent has no rights or legitimate interests in the disputed domain name. See RH-Interactive Jobfinance v. Mooburi Servs., FA 137041 (Nat. Arb. Forum Jan. 16, 2003) (“Complainant’s prior registration of the domain name, coupled with Respondent’s failure to respond to this dispute, is evidence that Respondent has no rights or legitimate interests in the domain name pursuant to Policy 4(a)(ii).”); see also Zappos.com, Inc. v. Turvill Consultants, FA 404546 (Nat. Arb. Forum Feb. 28, 2005) (“[T]he fact that Complainant had previously held the <wwwzappos.com> domain name registration and has mistakenly allowed it to expire is further evidence that Respondent lacks rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s failure to use the <airup.com> domain name indicates its bad faith Registration and use of the disputed domain name pursuant to Policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose).
In addition, Respondent’s bad faith registration and use of
the <airup.com> domain name
under Policy ¶ 4(a)(iii) is further evidenced by the
fact that Complainant previously registered the disputed domain name and
unintentionally allowed the registration to lapse. See InTest Corp. v. Servicepoint, FA 95291 (Nat. Arb. Forum
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 <airup.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: October 8, 2007
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