Bush Equities, Inc. d/b/a Cuddledown, Inc. v. Keyword Marketing, Inc.
Claim Number: FA0711001106692
Complainant is Bush Equities, Inc. d/b/a Cuddledown, Inc. (“Complainant”), represented by Jonathan
T. Harris, of Lambert Coffin,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cuddledown.org>, registered with Domaindoorman, LLC.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically November 7, 2007; the National Arbitration Forum received a hard copy of the Complaint November 8, 2007.
On November 22, 2007, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <cuddledown.org> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC verified that Respondent is bound by the Domaindoorman, LLC registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 4, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 26, 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@cuddledown.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 29, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <cuddledown.org>, is identical to Complainant’s CUDDLEDOWN mark.
2. Respondent has no rights to or legitimate interests in the <cuddledown.org> domain name.
3. Respondent registered and used the <cuddledown.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bush Equities Inc., d/b/a, Cuddledown, Inc., is a company that markets linens, clothing and furniture through mail order and online store services. The CUDDLEDOWN mark was registered by Complainant with the United States Patent and Trademark Office (“USPTO”) June 15, 2004 (Reg. No. 2,853,091).
Respondent registered the <cuddledown.org> domain name March 16, 2007. Respondent is using the disputed domain name as a commercial website that contains links to competing retail services not affiliated with Complainant.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 established rights in the CUDDLEDOWN mark
pursuant to Policy ¶ 4(a)(i) through registration of the mark with USPTO. 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 Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003) (“Complainant's federal trademark registrations establish Complainant's
rights in the BLIZZARD mark.”).
The disputed domain name, <cuddledown.org>, identical to Complainant’s CUDDLEDOWN mark pursuant to Policy ¶ 4(a)(i) because Respondent’s domain name fully incorporates the CUDDLEDOWN mark and top-level domain names such as “.org” are not considered relevant in evaluating whether a disputed domain name is identical to a mark. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference").
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant alleged that Respondent does not have rights or legitimate interests in the <cuddledown.org> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant established a prima facie case. Moreover, due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. 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 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”).
However, the Panel examines the record to determine whether evidence before the Panel would suggest that Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the <cuddledown.org> domain name to operate a website which
contains links for goods and services in direct competition with
Complainant. Respondent’s use of a
domain name that is identical to Complainant’s mark to divert users interested
in Complainant’s products to a website that offers competing goods and services
is not a use in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is
not a legitimate noncommercial or fair use of the disputed domain name pursuant
to Policy ¶ 4(c)(iii). See TM
Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec.
31, 2002) (finding that the respondent’s diversionary use of the complainant’s
marks to send Internet users to a website which displayed a series of links,
some of which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also Am. Online,
Inc. v. Advanced Membership Servs., Inc.,
FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's registration and use
of the <gayaol.com> domain name with the intent to divert Internet users
to Respondent's website suggests that Respondent has no rights to or legitimate
interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”).
Additionally, the record and WHOIS information indicates no
evidence suggesting Respondent is commonly known by the <cuddledown.org> domain name. Further, no evidence in the record suggests that
Respondent is authorized to use Complainant’s mark. Thus, Respondent has not established rights
or legitimate interests in the <cuddledown.org> 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 Ian Schrager Hotels, L.L.C.
v. Taylor, FA 173369 (Nat. Arb. Forum
Sept. 25, 2003) (finding that without demonstrable evidence to support the
assertion that a respondent is commonly known by a domain name, the assertion
must be rejected).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent is using the <cuddledown.org> domain name, which is confusingly
similar to Complainant’s CUDDLEDOWN mark, to direct Internet users to
Respondent’s commercial website containing links to goods and services that
compete with Complainant’s business. The
Panel finds that such use constitutes disruption of Complainant’s business and
is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum
July 18, 2000) (finding that the respondent registered the domain name in
question to disrupt the business of the complainant, a competitor of the
respondent); see also Disney Enters., Inc.
v. Noel, FA 198805 (Nat. Arb. Forum Nov.
11, 2003) (“Respondent registered a domain name confusingly similar to
Complainant's mark to divert Internet users to a competitor's website. It is a
reasonable inference that Respondent's purpose of registration and use was to
either disrupt or create confusion for Complainant's business in bad faith
pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
In
addition, Respondent is using the <cuddledown.org> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because
Respondent is using Complainant’s CUDDLEDOWN mark to attract Internet users to
a website that has links for the goods and services of Complainant’s
competitors. This conduct is evidence
that Respondent is attempting to profit by giving the impression of being
affiliated with Complainant. See Am. Univ. v. Cook,
FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain
name that incorporates another's mark with the intent to deceive Internet users
in regard to the source or affiliation of the domain name is evidence of bad
faith.”); see also Amazon.com, Inc. v. Shafir, FA
196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name
at issue in direct competition with Complainant, and giving the impression of
being affiliated with or sponsored by Complainant, this circumstance qualifies
as bad faith registration and use of the domain name 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 <cuddledown.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 14, 2008.
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