First Look Sonogram, Inc. v. Computer Care
Claim Number: FA0710001092259
Complainant is First Look Sonogram, Inc. (“Complainant”),
represented by Edward A. Sokolski, 3868 Carson Street, Suite 105, Torrance, CA 90503. Respondent is Computer Care (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <firstlookimaging.com>, registered with Godaddy.com, 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 8, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 22, 2007.
On October 9, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <firstlookimaging.com> 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 October 31, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 20, 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 November 29, 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 <firstlookimaging.com> domain name is confusingly similar to Complainant’s FIRST LOOK SONOGRAM mark.
2. Respondent does not have any rights or legitimate interests in the <firstlookimaging.com> domain name.
3. Respondent registered and used the <firstlookimaging.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, First Look
Sonogram, Inc., is a California-based company that has provided ultrasound and
sonagram services to customers in the
Respondent registered the <firstlookimaging.com>
domain name on April 2, 2007. Respondent
provides ultrasound and sonogram imaging services in
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 asserts rights in the FIRST LOOK SONOGRAM mark
through registration of the mark with the USPTO. The Panel finds that Complainant’s
registration satisfies its burden under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v.
Bin g Glu, FA 874496 (Nat Arb.
Forum Feb. 13, 2007) (finding rights in the METLIFE mark as a result of its
registration with the
Complainant contends that Respondent’s <firstlookimaging.com> domain name is
confusingly similar to Complainant’s FIRST LOOK
SONOGRAM mark. Complainant contends that
the terms “sonogram” and “imaging” are equivalent and that the presence of the
term “imaging” in Respondent’s mark is an insufficient means of distinguishing
its domain name from Complainant’s mark.
The Panel does not agree. The
term “imaging” has a far broader meaning than the term “sonogram.” Moreover, Complainant does not own the rights
to all uses of the terms “first” and “look.”
Complainant is a regional ultrasound clinic that provides its services
The Panel finds that Complainant has failed to satisfy Policy ¶ 4(a)(i).
Complainant contends that Respondent does not have rights or
legitimate interests in the <firstlookimaging.com>
domain name. Under certain
circumstances, it is possible for the mere assertion of a lack of rights or
legitimate interests to establish a prime
facie case under Policy ¶ 4(a)(ii). However, upon an examination of the evidence
provided by Complainant, it appears that Respondent does hold rights and
legitimate interests in the <firstlookimaging.com>
domain name. As such, the Panel will
further examine the presented evidence below.
See VeriSign Inc. v. VeneSign
Respondent is using the <firstlookimaging.com>
domain name in connection with the provision of ultrasound and sonogram
services in the
The Panel finds that Respondent does have rights or legitimate interests in the <firstlookimaging.com> domain name under Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant contends that Respondent registered and used the
domain name in bad faith. However,
Respondent registered the disputed domain name in connection with the provision
of ultrasound and sonogram services.
Respondent’s services are regionally specific services for customers
within a reasonable traveling distance from its clinic. Therefore,
The Panel finds that Respondent did not register the <firstlookimaging.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Honorable Karl V. Fink (Ret.), Panelist
Dated: December 10, 2007
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