AMFM, Inc. v. BWI Domain Manager
Claim Number: FA0709001084750
Complainant is AMFM, Inc. (“Complainant”), represented by Matthew
M. Jennings, of Cox Smith Matthews Incorporated, 112
East Pecan,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <1035thebeat.com>, registered with Rebel.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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On October 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 30, 2006 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@1035thebeat.com 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <1035thebeat.com> domain name is confusingly similar to Complainant’s THE BEAT trademark.
2. Respondent does not have any rights or legitimate interests in the <1035thebeat.com> domain name.
3. Respondent registered and used the <1035thebeat.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AMFM, Inc. is in the radio programming business. Since 1993, Complainant has continuously used
THE BEAT trademark in association with the WMIB radio station in
Respondent registered the <1035thebeat.com>
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.
Complainant holds a trademark registration for THE BEAT
trademark with the USPTO. The Panel
finds that this registration establishes Complainant’s rights pursuant to
Policy ¶ 4(a)(i). See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l
Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel
decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable
presumption that the mark is inherently distinctive.").
Respondent’s <1035thebeat.com> domain name is confusingly similar to Complainant’s THE BEAT trademark as it includes the entire mark along with a radio frequency used by Complainant. The addition of these numbers does not negate the similarity between the disputed domain name and Complainant’s business. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity).
Respondent’s <1035thebeat.com>
domain name also adds the generic top-level domain (“gTLD”) “.com.” The addition of a gTLD is not relevant in a
Policy ¶ 4(a)(i) analysis. Busy Body,
Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO
Thus, The Panel finds that the <1035thebeat.com> domain name is confusingly similar to Complainant’s
mark under Policy ¶ 4(a)(i).
Complainant claims that Respondent has no rights or legitimate interests in the <1035thebeat.com> domain name. Complainant must establish a prima facie case, by meeting the burden of proof that Respondent lacks rights and legitimate interests in the domain name. After Complainant has established a prima facie case, the burden shifts to Respondent to show rights or legitimate interests to the disputed domain name pursuant to Policy ¶ 4(a)(ii). Complainant has met its burden and established a prima facie case that Respondent lacks rights and legitimate interests. See 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”); 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 or legitimate interests in the
disputed domain name. See American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Respondent’s disputed domain name directs users to a website
that contains links to various other websites. The Panel finds that Respondent’s use of the
disputed domain names is neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a
legitimate noncommercial use in accordance with Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS
into Tech, FA 198795 (Nat. Arb. Forum Dec.
6, 2003) (“Diverting customers, who are looking for products relating to the
famous SEIKO mark, to a website unrelated to the mark is not a bona fide
offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a
noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Golden Bear Int’l,
Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003)
(“Respondent's use of a domain name confusingly similar to Complainant’s mark
to divert Internet users to websites unrelated to Complainant's business does
not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent’s website includes links related to Complainant’s business and presumably benefits from click-through fees if Internet users access those sites. Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites, the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Complainant 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 <1035thebeat.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: November 20, 2007
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