Newmont Mining Corporation v Web Services Pty c/o Aditya Roshni
Claim Number: FA0711001106525
Complainant is Newmont Mining Corporation (“Complainant”), represented by S.
Brandon Owen, of
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <newmontmining.com>, registered with Itpan.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 November 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 11, 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 firstname.lastname@example.org 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 <newmontmining.com> domain name is confusingly similar to Complainant’s NEWMONT mark.
2. Respondent does not have any rights or legitimate interests in the <newmontmining.com> domain name.
3. Respondent registered and used the <newmontmining.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a mining corporation established in
1940. Complainant provides mineral
exploration products and services.
Complainant maintains an active online presence in order to promote
these products and services. Complainant
has used the NEWMONT mark since at least 1925.
Since that time, Complainant has publicly traded on the New York Stock Exchange
under the NEWMONT mark. Complainant also
has maintained the registered <newmont.com> domain name since
Respondent registered the <newmontmining.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.
Under Policy ¶ 4(a)(i), Complainant
is not required to have a trademark registration in order to establish rights
in its mark. See
Complainant has established common law rights in the NEWMONT
mark pursuant to Policy ¶ 4(a)(i) through it’s history of use of the NEWMONT
mark since at least 1925 in its business through advertising, promotion and its
<newmont.com> domain name. See Keppel
TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of
long and substantial use of [KEPPEL BANK] in connection with its banking
business, it has acquired rights under the common law.”); see also Fishtech, Inc. v. Rossiter, FA 92976
(Nat. Arb. Forum
domain name is confusingly similar to Complainant’s NEWMONT mark pursuant to ¶
4(a)(i) because Respondent’s domain name incorporates
the NEWMONT mark with a generic term describing Complainant’s business. See
Arthur Guinness Son & Co. (
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights
or legitimate interests in the <newmontmining.com>
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 has
established a prima facie case. 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
Respondent is using the <newmontmining.com> domain name on a website that contains links and advertisements for goods and services in direct competition with Complainant. Respondent’s use of a domain name that is confusingly similar to Complainant’s mark to direct 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), or 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 <newmontmining.com> domain name. There is no evidence in the record that
Respondent is authorized to use Complainant’s mark. Thus, Respondent has not established rights
or legitimate interests in the <newmontmining.com>
domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <newmontmining.com>
domain name, which is confusingly similar to Complainant’s NEWMONT mark, to
direct Internet users to Respondent’s commercial website that advertises goods
and services that compete with Complainant’s business. The Panel finds that such use constitutes
disruption 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.
In addition, Respondent is using the <newmontmining.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent is using Complainant’s NEWMONT mark to attract Internet users to a website that has links for the goods and services of Complainant’s competitors for which Respondent presumably receives click-through fees. This conduct is evidence that the Respondent is attempting to profit by giving the impression of being affiliated with the 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 ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where the respondent linked the domain name to another domain name, <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain).
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 <newmontmining.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: December 27, 2007
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