International Medical Group, Inc. v Jonathan Bond a/k/a jonathan bond a/k/a KKB a/k/a j bond a/k/a j b a/k/a Jon Bond a/k/a JB a/k/a Unlicensed
Claim Number: FA0711001106364
Complainant is International Medical Group Inc. (“Complainant”), represented by Daniel
B. Dovenbarger, 2960 North Meridian Street, Indianapolis, IN 46208. Respondent is Jonathan Bond a/k/a jonathan
bond a/k/a KKB a/k/a j bond a/k/a j b a/k/a Jon Bond a/k/a JB a/k/a Unlicensed (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <not-img-europe.com>, <unlicensed.info>, <byebyejoe.com>, <bookwriter.org> and <jbclaims.com>, registered with Godaddy.com, Inc., and <img-sucks.info> and <treatingcustomersfairly.info> registered with Direct Information Pvt. Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he 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 November 5, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 8, 2007.
On November 6, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <not-img-europe.com>, <unlicensed.info>, <byebyejoe.com>, <bookwriter.org> and <jbclaims.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. On November 6, 2007, Direct Information Pvt. Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <img-sucks.info> and <treatingcustomersfairly.info> domain names are registered with Direct Information Pvt. Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. Godaddy.com, Inc. and Direct Information Pvt. Ltd. d/b/a PublicDomainRegistry.com have verified that Respondent is bound by their respective registration agreements 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 20, 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@not-img-europe.com, postmaster@img-sucks.info, postmaster@unlicensed.info, postmaster@byebyejoe.com, postmaster@bookwriter.org, postmaster@jbclaims.com, and postmaster@treatingcustomersfairly.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 18, 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <not-img-europe.com>, <img-sucks.info>, <unlicensed.info>, <byebyejoe.com>, <bookwriter.org>, <jbclaims.com> and <treatingcustomersfairly.info> domain names are confusingly similar to Complainant’s IMG mark.
2. Respondent does not have any rights or legitimate interests in the <not-img-europe.com>, <img-sucks.info>, <unlicensed.info>, <byebyejoe.com>, <bookwriter.org>, <jbclaims.com> and <treatingcustomersfairly.info> domain names.
3. Respondent registered and used the <not-img-europe.com>, <img-sucks.info>, <unlicensed.info>, <byebyejoe.com>, <bookwriter.org>, <jbclaims.com> and <treatingcustomersfairly.info> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant currently holds registrations of the IMG mark in connection with various financial and insurance services with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,661,719 issued Dec. 17, 2002).
The disputed domain names are either directly owned or operated
by Respondent, individually known by one of the following aliases: “Jonathan Bond,” “KKB,” “jonathan bond,” “j bond,” “j b,”
“Jon Bond,” “JB” and “Unlicensed.” The listed registrants for the <not-img-europe.com>, <unlicensed.info>,
<byebyejoe.com> and <bookwriter.org> domain names all
have the same e-mail contact person.
The contact phone number is the same for the <not-img-europe.com >, <unlicensed.info>, <byebyejoe.com>,
and <jbclaims.com> domain names.
The registrant address provided is the same for <unlicensed.info>,
<byebyejoe.com> and <jbclaims.com> domain names. The <treatingcustomersfairly.info>
and <jbclaims.com> domain
names have a different contact address then the rest, but their e-mail contacts
direct messages to the <unlicensed.info>
domain
name. The <img-sucks.info> domain name does not contain
any registrant or contact information that is either a variation on any of Respondent’s
other aliases or is identical to, similar to, or directs Internet users in any
way to the other disputed domain names.
The website that resolves from the <img-sucks.info> domain
name does contain messages signed by a “Jon Bond.”
Respondent’s <not-img-europe.com> domain name was registered on March 24, 2005. Respondent’s <img-sucks.info> domain name was registered on January 16, 2006. Respondent’s <unlicensed.info> domain name was registered on April 7, 2005. Respondent’s <byebyejoe.com> domain name was registered on March 25, 2005. Respondent’s <bookwriter.org> domain name was registered on May 16, 2001. Respondent’s <jbclaims.com> domain name was registered on June 20, 2005. Respondent’s <treatingcustomersfairly.info> domain name was registered on September 15, 2005. All of the disputed domain names resolve to various websites that include third-party advertisements, links and information criticizing and alleging unlawful or unethical business practices on the part of Complainant. Respondent also offers competing insurance advising services elsewhere on the Internet and has been the subject of libel and slander proceedings in federal district court in connection with Complainant.
Preliminary Issue:
Multiple Respondents
The Panel must first consider whether these proceedings have been properly instituted. UDRP ¶ 3(c) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that Respondent is operating under various asserted alleged aliases. Additionally, the National Arbitration Forum’s Supplemental Rule 4(f)(ii) requires a Panel to dismiss the Complaint in relation to the domain names it deems to be insufficiently linked to Respondent.
The listed registrants for the <not-img-europe.com>, <unlicensed.info>, <byebyejoe.com> and <bookwriter.org> domain names all have the same e-mail contact person. The contact phone number is the same for the <not-img-europe.com >, <unlicensed.info>, <byebyejoe.com> and <jbclaims.com> domain names. The registrant address provided is the same for <unlicensed.info>, <byebyejoe.com> and <jbclaims.com> domain names. The <treatingcustomersfairly.info> and <jbclaims.com> domain name have a different contact address then the rest, but their e-mail contacts direct messages to the <unlicensed.info> domain name. The Panel finds that listed aliases “Jonathan Bond,” “jonathan bond,” “j bond,” “j b,” “Jon Bond,” “JB” and “Unlicensed” are the same person or entity, or entities controlled by the same person or entity, so that the filing of this Complainant is justified and proper. See Yahoo!, Inc. v. Soksripanich & Others., D2000-1461 (WIPO Jan. 29, 2001) (finding multiple aliases to be the same respondent when the administrative contact information of the various subject domain names was the same or quite similar); see also Yahoo! Inc. & GeoCities v. Data Art Corp., D2000-0587 (WIPO Aug. 10, 2000) (decision rendered against multiple aliases where "the addresses used and the Contacts designated [were] inter-linking and identical.").
The <img-sucks.info>
domain name
does not contain any information in its WHOIS record that is either a variation
on any of the Respondent’s aliases or points to or shares registrant or contact
information that is identical to, similar to, or directs Internet users in any
way to the other disputed domain names. Complainant
contends that because there is content on the website that resolves from the <img-sucks.info>
domain name which contains messages signed by a “Jon Bond,” the Panel may
find that this domain name is also owned by Respondent. The Panel finds though that because nowhere
within the WHOIS information for the <img-sucks.info> domain name
is there a demonstrable connection to Respondent, the alias “KKB” is not the
same person or entity, or entities controlled by the same person or entity as Respondent. See Boehringer Ingelheim Pharma GmbH &
Co. KG v. Domains by Proxy, Inc., D2006-0465 (WIPO June 14, 2006) (partial dismissal of complaint against
the additional respondent, where the second respondent was not found to be the
same person or entity as the first respondent, because the WHOIS contact
details were different).
Therefore,
the Panel DENIES the Complaint in regards to the <img-sucks.info>
domain name pursuant to Supplemental Rule 4(f)(ii).
Primary Issues
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 has sufficiently established its rights in the IMG
mark through registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7,
2001) (finding that the Policy does not require that the mark be registered in
the country in which the respondent operates; therefore it is sufficient that
the complainant can demonstrate a mark in some jurisdiction).
The <not-img-europe.com> domain name contains Complainant’s IMG mark
in its entirety, along with the generic term “not,” and the geographic term
“europe,” both of which are separated from Complainant’s mark with hyphens. Further, this disputed domain name contains
the generic top-level domain (“gTLD”) “.com.”
It is well-established that the inclusion of a gTLD is irrelevant to a
Policy ¶ 4(a)(i) analysis. Additionally,
the inclusion of hyphens, generic terms, and geographic terms do not
distinguish a disputed domain name from a complainant’s mark under Policy ¶
4(a)(i). Consequently, the Panel finds
that the <not-img-europe.com> domain name is confusingly similar
to Complainant’s IMG 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 Health Devices Corp. v. Aspen S T C, FA
158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks
such as hyphens is irrelevant in the determination of confusing similarity
pursuant to Policy ¶ 4(a)(i).”); see also
Net2phone Inc. v. Netcall SAGL,
D2000-0666 (WIPO Sept. 26, 2000) (finding that the respondent’s domain name
<net2phone-europe.com> is confusingly similar to the complainant’s mark
because “the combination of a geographic
term with the mark does not prevent a domain name from being found confusingly
similar"); see also Arthur Guinness Son & Co. (Dublin) Ltd.
v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing
similarity where the domain name in dispute contains the identical mark of the
complainant combined with a generic word or term).
The Panel concludes
that in regards to the <not-img-europe.com> domain name,
Complainant has satisfied Policy ¶ 4(a)(i).
The <unlicensed.info>,
<byebyejoe.com>, <bookwriter.org>, <jbclaims.com>
and <treatingcustomersfairly.info> domain names do not contain
Complainant’s IMG mark or any variation thereof. Therefore, the Panel concludes that these
disputed domain names are not identical or confusingly similar to Complainant’s
mark pursuant to Policy ¶ 4(a)(i). See Knight-Ridder, Inc. v.
Cupcake Patrol, FA 96551 (Nat. Arb. Forum Mar. 6, 2001) (finding that the
domain name <hearld.com> is not identical or confusingly similar to a
trademark in which the complainant has rights); see also Thomas Cook Holdings
Ltd. v. Aydin, D2000-0676 (WIPO Sept. 11, 2000) (finding that the domain name,
<hot18to30.com>, is neither identical nor confusingly similar to the
complainant’s CLUB 18-30 trademark).
The Panel concludes
that Complainant has not satisfied Policy ¶ 4(a)(i) in regard to the <unlicensed.info>,
<byebyejoe.com>, <bookwriter.org>, <jbclaims.com>
and <treatingcustomersfairly.info> domain names because these
disputed domain names are not identical or confusingly similar to Complainant’s
mark. Furthermore, the Panel therefore declines
to analyze these disputed domain names under the other two elements of the
Policy. See Creative Curb v. Edgetec
Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that
because the complainant must prove all three elements under the Policy, the
complainant’s failure to prove one of the elements makes further inquiry into
the remaining element unnecessary); see
also Hugo Daniel Barbaca
Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into
the respondent’s rights or legitimate interests or its registration and use in
bad faith where the complainant could not satisfy the requirements of Policy ¶
4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no
rights or legitimate interests in the <not-img-europe.com> 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 <not-img-europe.com> domain name, but will
nonetheless consider the evidence in the record in light of 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 Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed 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 <not-img-europe.com> domain
name. Furthermore, Respondent has not
sought nor has Complainant granted permission to use the IMG mark in any
way. As a result, the Panel finds that
Respondent is not commonly known by the <not-img-europe.com> domain
name pursuant to Policy ¶ (c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s
WHOIS information implies that Respondent is ‘commonly known by’ the disputed
domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not
apply); 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 <not-img-europe.com>
domain name resolves to a website featuring advertisements and links to
various third parties. Additionally, the
website displays inflammatory language that alleges unlawful or
unethical business practices on the part of Complainant. The Panel finds this to be
neither a bona fide offering of goods
or service pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair
use pursuant to Policy ¶ 4(c)(iii). See E. & J. Gallo Winery v. Hanna Law Firm, D2000-0615 (WIPO Aug.
3, 2000) (finding that establishing a legitimate free speech/complaint site
does not give rights to use a famous mark in its entirety); see also Name.Space Inc. v. Network Solutions, Inc., 202 F.3d 573,
585 (2d Cir. 2000) (finding that although the content of the respondent’s site
may be entitled to First Amendment protection, the respondent’s use of the
complainant’s trademark in the domain name of its site is not protected.).
The Panel concludes
that in regards to the <not-img-europe.com> domain name,
Complainant has satisfied Policy ¶ 4(a)(ii).
The <not-img-europe.com> domain name contains Complainant’s IMG mark in its entirety and resolves to a website that contains defamatory information. Respondent and Complainant have been parties to litigation regarding libel and slander accusations. Moreover, Respondent offers competing insurance advising services elsewhere on the Internet. As a result and due to the competitive nature of the parties’ relationship, the Panel finds that Respondent registered and is using the <not-img-europe.com> domain name in bad faith for the purpose of disrupting Complainant’s business pursuant to Policy ¶ 4(b)(iii). See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion); see also 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).
Additionally, the <not-img-europe.com>
domain name incorporates Complainant’s entire IMG mark and contains
advertisements. The Panel finds that
Respondent is commercially benefiting from the likelihood of confusion Internet
users will have between the <not-img-europe.com> domain name and
Complainant’s mark and as such is further evidence of Respondent’s bad faith
use and registration pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Corp. v.
Finally, Respondent’s <not-img-europe.com> domain name is confusingly similar to Complainant’s mark and is used to display information criticizing Complainant and its business practices. The Panel finds that, although the criticism is not itself evidence of bad faith, because Respondent has engaged in such activity with a domain name that is confusingly similar to Complainant’s IMG mark, this serves as additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (finding that the respondent registered the domain names <kwasizabantu.com>, <kwasizabantu.org>, and <kwasizabantu.net> in bad faith where the respondent published negative comments regarding the complainant’s organization on the confusingly similar website); see also TM Acquisition Corp. v. S.E.A. Domains, FA 156800 (Nat. Arb. Forum June 12, 2003) (finding the respondent's use of the complainant's mark to redirect Internet users to a website dedicated to criticizing the complainant was evidence that the respondent’s domain names were registered and used in bad faith).
The Panel concludes
that in regards to the <not-img-europe.com> domain name,
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 in regards to the <not-img-europe.com> domain name.
Accordingly, it is Ordered that the <not-img-europe.com> domain name be TRANSFERRED from Respondent to Complainant.
Having found the alias “KKB” is not the same person or
entity, or entities controlled by the same person or entity as Respondent, the Panel
concludes that relief shall be DENIED in regards to the <img-sucks.info>
domain name.
Having failed to establish the three elements required under
the ICANN Policy, the Panel concludes that relief shall be DENIED in regard to the <unlicensed.info>, <byebyejoe.com>,
<bookwriter.org>, <jbclaims.com> and <treatingcustomersfairly.info>
domain names.
Honorable Karl V. Fink (Ret.), Panelist
Dated: January 1, 2008
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