Dr. David Doka v. none a/k/a Elvira Galindo
Claim Number: FA0708001065522
Complainant is Dr. David Doka (“Complainant”), represented by R.
Wayne Pritchard, P.E., of R. Wayne Pritchard, P.C., 300 E. Main,
Suite 1240, El Paso, TX 79901.
Respondent is none a/k/a Elvira Galindo (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <drdoka.com>, registered with Tucows 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 29, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 18, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <drdoka.com> domain name is confusingly similar to Complainant’s DOKA mark.
2. Respondent does not have any rights or legitimate interests in the <drdoka.com> domain name.
3. Respondent registered and used the <drdoka.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dr. David Doka, has continuously used over the
last twenty-four years the DOKA mark in connection with what was Complainant’s
Respondent’s <drdoka.com> domain name was registered 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.
Under Policy ¶ 4(a)(i), Complainant is not required to hold
a governmental trademark registration in order to acquire rights in a mark,
provided it can establish common law rights in a mark through establishment of
secondary meaning of such mark. See SeekAmerica
Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the
Rules do not require that the complainant's trademark or service mark be
registered by a government authority or agency for such rights to exist); see also
Great Plains Metromall, LLC v.
Creach, FA 97044 (Nat. Arb. Forum
Complainant has used its DOKA mark continuously and
extensively over the last twenty-four years in connection with the original “
Respondent’s <drdoka.com> domain name includes
Complainant’s DOKA mark in its entirety and then includes the descriptive term
“dr.” The disputed domain name also
includes the generic top-level domain name (“gTLD”) “.com.” It is well established that the inclusion of
a gTLD is irrelevant for the determination of whether a domain name is
confusingly similar. See Mrs.
World Pageants, Inc. v. Crown Promotions, FA 94321 (Nat. Arb. Forum
Apr. 24, 2000) (finding that punctuation is not significant in determining the
similarity of a domain name and mark); see also Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar). Furthermore, the inclusion of the generic
descriptive term “doctor,” as shortened to “dr”, which has an obvious
relationship to the professional services offered under Complainant’s DOKA
mark, does not negate a finding of confusing similarity. See also Space Imaging LLC v. Brownell,
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must initially make out
a prima facie case that Respondent
has no rights or legitimate interests in the domain name at issue. See
TotalFinaElf E&P USA, Inc. v. Farnes, FA 117028 (Nat. Arb. Forum
Respondent has failed to submit a Response to the Complaint. The Panel may presume that Respondent has no
rights or legitimate interests in the <drdoka.com> domain name. Nonetheless, the Panel will still consider
all available evidence relevant to the factors listed in Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Respondent’s <drdoka.com> domain name contains Complainant’s DOKA mark in its entirety and resolves to a website that contains links to services related to those offered under Complainant’s mark. The Panel finds this use of the disputed domain name to be neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
Moreover, nowhere in Respondent’s WHOIS information or elsewhere does the record indicate that Respondent is known by the disputed domain name. Respondent has not sought nor been granted permission or a license to use Complainant’s mark. The Panel finds as such that Respondent is not commonly known by the DOKA mark, or the disputed domain name pursuant to Policy ¶ 4(c)(ii). 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 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).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The <drdoka.com> domain name resolves to a website containing links to third-parties that offer services that are related to those offered under Complainant’s DOKA mark. The Panel presumes that such links t provide a commercial benefit to Respondent and are evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); 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 concludes that Complainant has 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 <drdoka.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 9, 2007
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