David Keirsey v.
Claim Number: FA0711001106078
Complainant is David Keirsey (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <davidkeirsey.com>, registered with Domaindoorman, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On November 5, 2007, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <davidkeirsey.com> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, 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 November 19, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 10, 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.
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 <davidkeirsey.com> domain name is identical to Complainant’s DAVID KEIRSEY mark.
2. Respondent does not have any rights or legitimate interests in the <davidkeirsey.com> domain name.
3. Respondent registered and used the <davidkeirsey.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, David Keirsey, Inc. is an online provider of software for testing and scoring tests in the fields of personality type, conflict management, career selection, team building, career placement, career management, human resource management, relationship, dating, learning styles and research. Dr. David West Keirsey is an internationally-known psychologist who has developed the four Keirsey Temperaments: Artisan, Guardian, Idealist, and Rational. Complainant has used the DAVID KERISEY mark and the domain name <keirsey.com> since 1996 to promote the Keirsey Temperament Sorter and the internationally-bestselling books Please Understand Me and Please Understand Me II. Complainant has established rights in the DAVID KEIRSEY mark through extensive marketing of its online resources and books for over ten years.
Respondent registered the <davidkeirsey.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 is not required to own a trademark registration
to establish rights in the DAVID KEIRSEY mark under Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood,
D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the
complainant's trademark or service mark be registered by a government authority
or agency for such rights to exist);
see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO
Complainant has established common law rights in the DAVID KEIRSEY mark through continuous and extensive use of the mark in connection with its personality-type resources since 1996. Complainant is well known in the fields of personality type, conflict management, career selection, team building, career placement, career management, human resource management, relationship, dating, learning styles and research for its development of a personality type assessment system. Complainant has also registered the <keirsey.com> domain name. Therefore, Complainant’s DAVID KEIRSEY mark has acquired secondary meaning sufficient to establish common law rights in the mark pursuant to Policy ¶ 4(a)(i). See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also BroadcastAmerica.com, Inc. v. Quo, DTV2000-0001 (WIPO Oct. 4, 2000) (finding that the complainant has common law rights in BROADCASTAMERICA.COM, given extensive use of that mark to identify the complainant as the source of broadcast services over the Internet, and evidence that there is wide recognition with the BROADCASTAMERICA.COM mark among Internet users as to the source of broadcast services).
domain name is identical under Policy ¶ 4(a)(i)
because it incorporates both terms of the DAVID KEIRSEY mark. The addition of the generic top-level domain
(“gTLD”) “.com” does not sufficiently distinguish the disputed domain name from
the DAVID KEIRSEY mark because all domain names are required to have a top-level
domain. Domain names also do not have spaces,
so the lack of a space between the two individual terms of the DAVID KEIRSEY
mark does not distinguish the disputed domain name. See Pomellato S.p.A v. Tonetti,
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and
legitimate interests in the <davidkeirsey.com>
domain name. Complainant must first
present a prima facie case
establishing that Respondent lacks all rights and legitimate interests in the
disputed domain name. Once Complainant
has met the burden and made a prima facie
case supporting the assertion that Respondent lacks rights and legitimate
interests, the burden shifts to Respondent to show that it does have rights or
legitimate interests in the disputed domain name. The Panel finds that Complainant has
demonstrated that Respondent lacks rights and legitimate interests in the <davidkeirsey.com> domain name, and
thus made a prima facie case pursuant
to Policy ¶ 4(a)(ii).
See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,
Because Respondent failed to respond to the Complaint, the Panel presumes that Respondent lacks all rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). Nevertheless, the Panel will examine all evidence in the record to determine if Respondent has any rights or legitimate interests under Policy ¶ 4(c).
There is no evidence in the record suggesting that
Respondent is commonly known by the <davidkeirsey.com>
domain name. Furthermore, Complainant
contends that Respondent has never been authorized to use the DAVID KEIRSEY
mark. Therefore, the Panel finds that
Respondent is not commonly known by the disputed domain name pursuant to Policy
¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
In addition, Respondent is currently using the disputed domain name to advertise links to third-party websites that offer competing products and services. The Panel finds that Respondent’s use of the disputed domain name for commercial gain by misdirecting Internet users to third-party websites offering similar services to Complainant does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name under 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 DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent uses the <davidkeirsey.com> domain name to direct Internet users a website that advertises links to third-party websites competing with Complainant’s products and services. Respondent likely receives click-through fees for each Internet user redirected to competing websites. Thus, Respondent is taking advantage of the likelihood of confusion between the disputed domain name and the DAVID KEIRSEY mark, and capitalizing on the goodwill associated with the mark. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also 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).
Moreover, the Panel finds that Respondent’s use of the disputed domain name to advertise links to websites offering products and services that compete with Complainant constitutes bad faith registration and use under 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 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).”).
Finally, Respondent has registered
domain names incorporating others’ famous names and marks, and has been the
respondent in several UDRP decision in which the
disputed domain name was transferred from Respondent to the complainant in that
case. See O’Reilly Auto., Inc. v.
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <davidkeirsey.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 27, 2007
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