Security Travel USA, Inc v. Tony Calhoun
Claim Number: FA0709001074538
Complainant is Security Travel USA, Inc (“Complainant”), represented by Bradley
M. Bole, of Rahdert, Steele, Bole & Rynolds, P.A.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <securitytravelusa.net>, registered with Godaddy.com, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 4, 2007; the National Arbitration Forum received a hard copy of the Complaint on September 5, 2007.
On September 5, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <securitytravelusa.net> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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").
On September 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 2, 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.
On October 9, 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:
name is identical to Complainant’s SECURITY TRAVEL
2. Respondent does not have any rights or legitimate interests in the <securitytravelusa.net> domain name.
3. Respondent registered and used the <securitytravelusa.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Security Travel USA, Inc.,
is a business operating in
Respondent’s <securitytravelusa.net> domain name was registered on June 6, 2007 and currently resolves to a website containing Complainant’s mark in its entirety and alleges dissatisfaction with Complainant’s services while criticizing 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. web net-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), Complaint need not have registered their mark with a governmental authority in order to establish rights in the 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 May 18, 2001) (“The Policy does not require that a trademark be registered by a governmental authority for such rights to exist.”).
Complainant has continuously used the SECURITY TRAVEL
Respondent’s <securitytravelusa.net> domain
name contains Complainant’s mark in its entirety omitting the spaces between “security,”
“travel,” and “usa,” while including the generic top level domain (“gTLD”)
“.net.” It is well established that the
omission of spaces and inclusion of gTLDs are irrelevant to a Policy ¶ 4(a)(i) analysis. As such, the Panel finds pursuant to Policy ¶
4(a)(i) that Respondent’s disputed domain name is identical to Complainant’s
The Panel concludes that Complainant has sufficiently satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. See TotalFinaElf E&P USA, Inc. v. Farnes, FA 117028 (Nat. Arb. Forum Sept. 16, 2002) (“In order to bring a claim under the Policy, Complainant must first establish a prima facie case. Complainant’s [initial burden] is to provide proof of valid, subsisting rights in a mark that is similar or identical to the domain name in question.”). The Panel finds that Complainant has established this and thus the burden is shifted to Respondent to show that it does have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent.); see also 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”).
Respondent has not submitted a response to the Complaint. The Panel presumes accordingly that Respondent has no rights or legitimate interests in the <securitytravelusa.net> domain name but will still consider all the available evidence in light of the factors listed under Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also 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.”).
Respondent’s WHOIS information or elsewhere in the record does it indicate that
Respondent is or ever has been commonly known by the <securitytravelusa.net>
domain name. Moreover, Respondent has
not sought nor been granted permission from Complainant to use the SECURITY
Respondent’s disputed domain name contains and displays Complainant’s mark in its entirety. The website that resolves from the disputed domain name criticizes and complains about the services provided by Complainant and presumably disrupts Complainant’s business. The Panel recognizes that Respondent has a free speech right to such criticism, but absent evidence to the contrary, cannot use Complainant’s mark without Complainant’s consent to convey such criticism. As such, the Panel finds that Respondent has no rights or legitimate interests in the <securitytravelusa.net> domain name because it is not making a bona fide offering of goods or services pursuant to Policy ¶ 4 (c)(i) or using the disputed domain name in connection with a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See E. & J. Gallo Winery v. Hanna Law Firm, D2000-0615 (WIPO Aug. 3, 2000) (finding that establishing a legitimate free speech/complaint site does not give rights to use a famous mark in its entirety); see also Direct Line Group Ltd. v. Purge I.T., D2000-0583, (WIPO Aug. 13, 2000) (finding that use of the complainant’s name and adoption of it in a domain name is inherently likely to lead some people to believe that the complainant’s are connected with it); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (holding that the respondent’s showing that it “has a right to free speech and a legitimate interest in criticizing the activities of organizations like the Complainant . . . is a very different thing from having a right or legitimate interest in respect of [a domain name that is identical to Complainant’s mark]”).
The Panel concludes that Complainant has sufficiently satisfied Policy ¶ 4(a)(ii).
The factors listed under Policy ¶ 4(b) are not exclusive for findings of bad faith and the Panel is free to infer bad faith from other situations. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith.”).
domain name resolves to a website
containing Complainant mark in its entirety and features complaints and
negative descriptions of Complainant’s services. This presumably negatively affects the
business that Complainant conducts under the SECURITY TRAVEL
The Panel concludes that Complainant has sufficiently 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 <securitytravelusa.net> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: October 19, 2007
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