Calcar, Inc. v.
Claim Number: FA0709001075509
Complainant is Calcar, Inc. (“Complainant”), represented by Gary
J. Nelson, of Christie, Parker & Hale LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <calcar.info>, registered with Direct Information Pvt. Ltd. d/b/a Publicdomainregistry.com.
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 electronically on
On September 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 4, 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 firstname.lastname@example.org 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 <calcar.info> domain name is identical to Complainant’s CALCAR mark.
2. Respondent does not have any rights or legitimate interests in the <calcar.info> domain name.
3. Respondent registered and used the <calcar.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Calcar, Inc.,
provides products and services to the automotive industry. Complainant has distributed its services and
products under the CALCAR mark for the past ten
years. Complainant holds a registration
for the CALCAR mark with the United States Patent and Trademark Office (“USPTO”)
(Reg. No. 2,419,611 issued
Espanoles, registered the disputed 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.
The Panel finds that Complainant has satisfied the initial
burden under Policy ¶ 4(a)(i) of establishing
rights in the CALCAR mark through its registration with the USPTO. See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum
The <calcar.info> domain name incorporates Complainant’s full mark only adding the generic
top-level domain (“gTLD”) “.info.” The
Panel finds that the disputed domain name is identical to Complainant’s CALCAR
mark under Policy ¶ 4(a)(i). See 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); see also Gardline Surveys Ltd. v. Domain Fin. Ltd.,
FA 153545 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must establish a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant’s assertion that Respondent lacks rights and legitimate interests sufficiently meets this burden and shifts the burden to Respondent to establish that such rights or legitimate interests exist. See 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); 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 failed to produce a Response in this proceeding. Thus, the Panel presumes that Respondent holds no rights or legitimate interests in the disputed domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name.”). However, the Panel will now examine the evidence to determine if Respondent can establish rights or legitimate interests under Policy ¶ 4(c).
Nothing in the record, including the WHOIS information,
indicates that Respondent Pueblos Espanoles is commonly known by the <calcar.info> domain name.
Accordingly, the Panel concludes that Respondent is unable to establish
rights or legitimate interests under Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video &
Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding
that the respondent was not commonly known by <aolcamera.com> or
<aolcameras.com> because the respondent was doing business as “Sunset
Camera” and “World Photo Video & Imaging Corp.”); see Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum
The evidence also reveals that Respondent has made no active
use of the disputed domain name. The
Panel concludes that Respondent is unable to establish rights under Policy ¶¶
4(c)(i) and 4(c)(iii) as failure to make an active use of the disputed domain
name does not qualify as a bona fide
offering of goods or services or a legitimate noncommercial or fair use. See
State Fair of
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel concludes that Respondent’s failure to make an active use of the disputed domain is indicative of bad faith registration and use under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s failure to make an active use of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also 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).
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 <calcar.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 23, 2007
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