Aromasys, Inc. and In-Vironmental Integrity, Inc. v. S. Black c/o Vinyl Blue Enterprises Incorporated
Claim Number: FA0711001106362
Complainant is Aromasys, Inc. and In-Vironmental Integrity, Inc. (“Complainant”), represented by Richard
A. Kempf, of Moore & Hansen, PLLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <aromasys.org>, <aromasys.biz>, and <aromasys.info>, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
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 postmaster@aromasys.org, postmaster@aromasys.biz, and postmaster@aromasys.info 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <aromasys.org>, <aromasys.biz>, and <aromasys.info> domain names are identical to Complainant’s AROMASYS mark.
2. Respondent does not have any rights or legitimate interests in the <aromasys.org>, <aromasys.biz>, and <aromasys.info> domain names.
3. Respondent registered and used the <aromasys.org>, <aromasys.biz>, and <aromasys.info> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainants, Aromasys, Inc. and In-Vironmental Integrity, Inc. (hereinafter referred to as “Complainant”), are sister corporations that design, manufacture, and market environmental fragrance technologies. Complainant registered the AROMASYS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,126,685 issued January 6, 1998).
Respondent registered the <aromasys.org>, <aromasys.biz>,
and <aromasys.info> domain names 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 registered the AROMASYS mark with the USPTO, and
have therefore established rights to the mark pursuant to Policy ¶ 4(a)(i). Complainant’s
filing of the mark with the USPTO before Respondent registered the disputed
domain names secures Complainant’s rights to the mark. 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 Planetary
Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the
effective date of the complainant’s trademark rights date back to the
application’s filing date); see also Thompson v. Zimmer, FA 190625
(Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was
subsequently approved by the U.S. Patent and Trademark Office, the relevant
date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i)
dates back to Complainant’s filing date.”).
As the <aromasys.org>, <aromasys.biz>, and <aromasys.info>
domain names contain Complainant’s entire AROMASYS mark and merely add the
generic top-level domains (“gTLDs”) “.org,” “.biz,” and “.net,” the Panel finds
that the disputed domain names are identical to the mark under Policy ¶
4(a)(i). See Trip Network Inc. v.
Alviera,
FA 914943 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent has neither rights nor
legitimate interests in the disputed domain names. Complainant has the initial burden of showing
that Respondent lacks rights and legitimate interests in the disputed domain
names. Once
Complainant has made a prima facie
case, the burden shifts to Respondent to show that it has rights or legitimate
interests in the disputed domain names.
The Panel finds that Complainant has made a prima facie case and shown that Respondent lacks rights and
legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376
(WIPO
Because Respondent failed to respond to the Complaint, the
Panel assumes that Respondent lacks all rights and legitimate interests in the <aromasys.org>, <aromasys.biz>, and
<aromasys.info> domain names.
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 Talk City, Inc. v. Robertson, D2000-0009
(WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall
draw such inferences’ from the Respondent’s failure to comply with the rules
‘as it considers appropriate.”). Despite Respondent’s failure to respond,
the Panel will examine all evidence in the record to determine if Respondent
has rights or legitimate interests in the disputed domain names under Policy ¶
4(c).
Complainant claims that Respondent has never been authorized
to use the AROMASYS mark. Further, the
WHOIS information indicates that Respondent is “S. Black c/o Vinyl Blue
Enterprises,” and makes no indication that Respondent is commonly known by the
disputed domain names. Therefore, the
Panel finds that Respondent is not commonly known by the disputed domain names
under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Further, Respondent’s <aromasys.org>, <aromasys.biz>, and
<aromasys.info> domain names resolve to websites that host hyperlinks to various
third-party commercial websites, including those in direct competition with
Complainant. The Panel finds that such use is
not 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). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb.
Forum June 12, 2003) (finding that the respondent’s use
of the disputed domain name to redirect Internet users to websites unrelated to
the complainant’s mark, websites where the respondent presumably receives a
referral fee for each misdirected Internet user, was not a bona fide
offering of goods or services as contemplated by the Policy); see also Computerized Sec.
Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s
appropriation of [Complainant’s] SAFLOK mark to market products that compete
with Complainant’s goods does not constitute a bona fide offering of goods and
services.”).
The
Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain names resolve to a website that
offers services that compete with Complainant’s business. The Panel therefore finds that Respondent
registered and is using the disputed domain names in bad faith pursuant to
Policy ¶ 4(b)(iii).
See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Svcs., FA 877982 (Nat. Arb. Forum Feb.
13, 2007) (finding that the respondent registered and used the disputed domain
name in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name
resolved to a website that displayed commercial links to the websites of the
complainant’s competitors); see also David Hall Rare Coins v.
Respondent has registered and is using the <aromasys.org>, <aromasys.biz>, and <aromasys.info>
domain names in bad faith pursuant to Policy ¶ 4(b)(iv) because the
disputed domain names resolve to websites that host hyperlinks to various third-party commercial
websites, including those in direct competition with Complainant. The Panel finds that Respondent is
benefiting from the likelihood of confusion between Respondent’s domains names
and the AROMASYS mark, and that such uses create confusion as to Complainant’s
source, sponsorship, affiliation, or endorsement of the websites that resolve
from the disputed domain names.
Therefore, the Panel finds that this constitutes evidence of
registration and use in bad faith under Policy ¶ 4(b)(iv).
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 <aromasys.org>, <aromasys.biz>, and <aromasys.info> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: December 27, 2007
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