Major Hustle Entertainment/Records, Co. v. Major Hustle Ent LLC
Claim Number: FA0708001071809
Complainant is Major Hustle Entertainment/Records, Co. (“Complainant”), represented by Stephen
M. Miller, PO Box 214, Eagleville, TN 37060. Respondent is Major Hustle Ent LLC (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <majorhustleonline.com> and <majorhustle.net>, registered with Godaddy.com, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
On September 11, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 1, 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@majorhustleonline.com and postmaster@majorhustle.net 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <majorhustleonline.com> and <majorhustle.net> domain names are confusingly similar to Complainant’s MAJOR HUSTLE ENTERTAINMENT mark.
2. Respondent does not have any rights or legitimate interests in the <majorhustleonline.com> and <majorhustle.net> domain names.
3. Respondent registered and used the <majorhustleonline.com> and <majorhustle.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Major Hustle Entertainment/Records, Co., is an Ohio Corporation that was organized in 1999. Complainant began using the MAJOR
HUSTLE ENTERTAINMENT mark in 2004 in connection with the release of
a music CD embodying the performances of a hip hop group professionally known
as “Blaze It Up Mafia.” In addition, Complainant has filed a
trademark application with the United States Patent and Trademark Office
(“USPTO”) for the MAJOR HUSTLE ENTERTAINMENT mark (Ser. No. 77/128,454 filed
Respondent registered the <majorhustleonline.com> and <majorhustle.net>
domain names 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 is not required to own a trademark application
to establish rights in the MAJOR HUSTLE ENTERTAINMENT mark under Policy ¶ 4(a)(i). See British Broad. Corp.
v. Renteria, D2000-0050 (WIPO
The Panel finds that Complainant established common law
rights in the MAJOR HUSTLE ENTERTAINMENT mark through continuous and extensive
use of the mark in connection with its recording services since as early as
1999. As a result of Complainant’s
continuous and extensive use of the mark, Complainant’s MAJOR HUSTLE
ENTERTAINMENT mark has acquired secondary meaning sufficient to establish
common law rights in the mark under Policy ¶ 4(a)(i). See
Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb.
Forum Aug. 17, 2000) (finding common law rights in a mark where its use was
continuous and ongoing, and secondary meaning was established); see also Marty Taylor Homes, Inc. v. JNPR
Mgmt., FA 366170 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <majorhustleonline.com> and <majorhustle.net> domain names. Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving this allegation. However, once Complainant has made a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. The Panel finds, in the present case, that Complainant made a prima facie case under the Policy. See 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”); 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 answer the Complaint allows the Panel to presume that Respondent lacks rights and legitimate interests in the disputed domain names. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). Nevertheless, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Nothing in the evidence, including the WHOIS information,
suggests that Respondent is commonly known by the <majorhustleonline.com> and <majorhustle.net> domain names. According to Complainant, Respondent is not
authorized to use the MAJOR HUSTLE ENTERTAINMENT mark. Therefore, the Panel finds that Respondent is
not commonly known by the <majorhustleonline.com> and <majorhustle.net> domain names
pursuant to Policy ¶ 4(c)(ii). See G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong
evidence that Respondent is commonly known by the disputed domain name in order
to find that Respondent has rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c)(ii).
However, there is no evidence on record, and Respondent has not come
forward with any proof to establish that it is commonly known as CELEBREXRX or
<celebrexrx.com>.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no
rights or legitimate interests where (1) the respondent is not a licensee of
the complainant; (2) the complainant’s prior rights in the domain name precede
the respondent’s registration; (3) the respondent is not commonly known by the
domain name in question).
The disputed domain name redirects Internet users to Respondent’s commercial website that advertises competing recording services. 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 or fair 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).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent acted in bad faith by registering and using domain names that contain the dominant features of Complainant’s mark. Respondent’s disputed domain names resolve 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 names resolve to websites
featuring advertisements for competing recording services. Presumably, Respondent receives click-through
revenue from its diversionary use of the disputed domain names. 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 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 <majorhustleonline.com> and <majorhustle.net> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: October 17, 2007
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