Christopher Sarantakos a/k/a Criss Angel v. WhoisGuard c/o WhoisGuard Protected
Claim Number: FA0710001088112
Complainant is Christopher Sarantakos a/k/a Criss
Angel (“Complainant”), represented by
Thomas Carulli, of Kaplan, von Ohlen & Massamillo, LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <crissangelrevealed.com>, registered with Enom, 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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 3, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 4, 2007.
On October 3, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <crissangelrevealed.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 October 15, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 5, 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.
On November 9, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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:
1. Respondent’s <crissangelrevealed.com> domain name is confusingly similar to Complainant’s CRISS ANGEL mark.
2. Respondent does not have any rights or legitimate interests in the <crissangelrevealed.com> domain name.
3. Respondent registered and used the <crissangelrevealed.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Christopher Sarantakos, is a world-famous performer, magician, artist and producer who works under the name CRISS ANGEL. He owns a trademark and service mark for the name CRISS ANGEL registered with the Unites States Patent and Trademark Office (“USPTO”) (Reg. No. 1,088,112 issued August 4, 1992). The CRISS ANGEL mark is used in connection with his performances, entertainment productions, and a variety of clothing, jewelry, calendars, school supplies, books, glassware and sporting goods.
Respondent’s <crissangelrevealed.com> domain name was registered on November 20, 2006 and resolves to a website devoted to the commercial sale of a book titled “Guide to Master Mentalism.” The product is directly marketed to Complainant’s fame and fame of his marks as it includes numerous references to CRISS ANGEL in an attempts to reveal the secrets of Complainant’s productions.
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.
Under Policy ¶ 4(a)(i), Complainant has sufficiently
established its rights in the CRISS ANGEL mark through registration with the
Respondent’s <crissangelrevealed.com> domain name contains Complainant’s CRISS ANGEL mark in its entirety and then includes both the generic top level domain (“gTLD”) “.com” and the generic term “revealed,” which alludes to the productions that occur under the CRISS ANGEL mark. It is well established that the inclusion of a gTLD is not relevant to a Policy ¶ 4(a)(i) analysis. Further, the inclusion of a generic term that describes the services or products offered under Complainant’s mark does not distinguish a disputed domain name from a complainant’s mark. Consequently, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to 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 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).
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 VeriSign
Inc. v. VeneSign
Respondent has failed to submit a Response to the Complaint. Therefore, the Panel presumes that Respondent has no rights or legitimate interests in the disputed domain name but will nonetheless consider all of the evidence in the record taking into account 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 Eroski, So. Coop. v. Getdomains Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003) (“It can be inferred that by defaulting Respondent showed nothing else but an absolute lack of interest on the domain name.”).
Nowhere in Respondent’s WHOIS information or elsewhere in the record does it indicate that Respondent is or ever was commonly known by the disputed domain name. Further, there is no evidence that Respondent ever sought or received permission from Complainant to use the CRISS ANGEL mark in any way. Absent any evidence to the contrary, the Panel finds that Respondent is not commonly known by the <crissangelrevealed.com> domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <crissangelrevealed.com> domain name contains Complainant’s mark in its entirety and resolves to a website dedicated to the commercial sale of a book directly in competition with many of the products offered under Complainant’s mark. The book on Respondent’s website purports to reveal service mark secrets related to the entertainment productions Complainant conducts under the CRISS ANGEL mark. The Panel finds that this is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”); see also State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Nat. Arb. Forum Sept. 27, 2000) (“The unauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services.”)
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The <crissangelrevealed.com> domain name resolves to a book purporting to reveal the service mark secrets associated with Complainant’s entertainment productions under the CRISS ANGEL mark and attempts to disrupt Complainant’s business by offering a product in the same market that is associated with the products and services offered under Complainant’s mark. Consequently, the Panel finds this to establish that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); 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 is commercially benefiting from the sale of the book offered on the website that resolves from Respondent’s confusingly similar <crissangelrevealed.com> domain name. The Panel finds this to be further evidence of Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also 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 and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
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 <crissangelrevealed.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: November 20, 2007
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