International Lutheran
Laymen's League d/b/a Lutheran Hour Ministries v.
Claim Number: FA0709001075523
PARTIES
Complainant is International Lutheran Laymen's League d/b/a Lutheran
Hour Ministries (“Complainant”),
represented by Michael A. Thorne, of Spencer Fane Britt & Browne LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thelutheranhour.com>, registered
with Compana,
LLC.
PANEL
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.
David E. Sorkin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on September 10, 2007; the
National Arbitration Forum received a hard copy of the Complaint on September 11, 2007.
On September 17, 2007, Compana, LLC confirmed by e-mail to the
National Arbitration Forum that the <thelutheranhour.com> domain name is
registered with Compana, LLC and that the
Respondent is the current registrant of the name. Compana, LLC
has verified that Respondent is bound by the Compana,
LLC 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 21, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of October 11, 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@thelutheranhour.com by
e-mail.
A Response purporting to have been filed on October 11, 2007, was
received by the National Arbitration Forum on October
12, 2007. The Response was deemed
by the Forum to be deficient under ICANN Rule 5 as it was received after the
Response deadline. The Panel has
nonetheless considered the Response in the interest of fairness.
On October 17, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed David E. Sorkin as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant alleges that the disputed domain name <thelutheranhour.com> is
confusingly similar to its
B. Respondent
Respondent states as follows: “Had
Complainant contacted Respondent prior to the institution of this proceeding,
Respondent would have transferred the domain to Complainant. As such, Respondent agrees to the relief requested
by the Complainant and will, upon order of the Panel, do so. This is not an admission to the three
elements of 4(a) of the policy but rather an offer of ‘unilateral consent to
transfer’ as prior Panels have deemed it.”
FINDINGS
The Panel finds that the three elements set
forth in Paragraph 4(a) of the Policy have been established for purposes of
this proceeding.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
Although Respondent has not admitted these three elements, it has not
contested them either. The Panel therefore
will review the sufficiency of the allegations and evidence submitted by
Complainant.
Complainant alleges that the disputed domain
name is confusingly similar to its registered mark. The domain name is comprised of the mark with
spaces removed and the generic “.com” top-level domain suffix appended. Finding no relevant differences between the
domain name and Complainant’s mark, the Panel finds that this element is satisfied.
Complainant alleges that Respondent lacks
rights or legitimate interests in respect of the disputed domain name, on the
grounds that Respondent does not appear to have used, or made demonstrable
preparations to use, the domain name in connection with a bona fide offering of goods or services; that Respondent does not
appear to be commonly known by the domain name; and that Respondent is not
making a legitimate noncommercial or fair use of the domain name. Complainant’s allegations as to rights or
legitimate interests are sufficient to shift the burden of production to
Respondent, although Complainant ultimately bears the burden of proof on this
and all other elements required by the Policy.
See, e.g., Royal Bank of Scot. Group plc v.
Finally, Complainant alleges that the
disputed domain name was registered and is being used in bad faith, on the
grounds that Respondent registered the domain name “with at least constructive
knowledge” of Complainant’s trademark rights; that Respondent has used the
domain name to generate revenue by linking to websites that are misleading and
that compete with Complainant; and that Respondent has used the domain name to
divert Internet users for commercial gain.
Complainant further alleges that Respondent “behaves like a
run-of-the-mill cybersquatter,” failing to provide information that a bona fide marketer of goods or services
would be expected to provide, and having been found to have registered and used
other domain names in bad faith in numerous previous proceedings under the
Policy.
While constructive notice is normally
insufficient under the Policy, see, e.g.,
House of Spices (
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thelutheranhour.com> domain name be TRANSFERRED
from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 24, 2007
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