National Federation of
Independent Business v. Christopher Vanderhorst
Claim Number: FA0711001106754
PARTIES
Complainant is National Federation of Independent Business (“Complainant”), represented by Christopher Clark,
7770 Regents Road #113-576, San Diego, CA,
92122. Respondent is Christopher Vanderhorst (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nfib.us>, registered with Melbourne It
Ltd.
PANEL
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.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On
On November 28, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of December 18, 2007 by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute
Resolution Policy (the “Rules”).
A timely Response was received and determined to be complete on
On
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <nfib.us> domain name at issue is confusingly similar to Complainant’s NFIB mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the <nfib.us> domain name in bad faith.
B. Respondent makes the following assertions:
1. Respondent does not deny that the domain name at issue is confusingly similar to Complainant’s NFIB mark.
2. Respondent claims he has rights or legitimate interests in the domain name at issue.
3. Respondent denies that he registered the domain name at issue in bad faith.
FINDINGS
Complainant
National Federation of Independent Business is an organization which has
represented the interests of independent businesses before the federal and
state executive and legislative branches of government since 1947. In that connection, Complainant has
registered its NFIB mark with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 1,971,490, issued
The Respondent does not deny that the domain name at issue is essentially identical to Complainant’s mark but is using <nfib.us> a “gripe site” to voice complaints about membership dues and lack of disclosures on the part of Complainant. There is no disclosure on the website associated with the domain name at issue that it is not in some way sponsored or authorized by the Complainant. It does not appear that the Respondent actually objects to a transfer of the domain name at issue to Complainant but merely objects to Complainant’s resort to bringing this proceeding against him.
DISCUSSION
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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or
confusingly similar to a trademark or service mark in which the Complainant has
rights;
(2) the Respondent has no rights or legitimate interests in respect of
the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
Complainant has sufficiently
established its rights in the NFIB mark through registration of the mark with the United States Patent and
Trademark Office (“USPTO”) (Reg. No. 1,971,490, issued
The <nfib.us> domain
name is identical to Complainant’s NFIB mark.
The only difference between Complainant’s mark and Respondent’s disputed
domain name is the addition of the country-code top-level domain (“ccTLD”)
“.us.” Accordingly, the Panel finds that
the disputed domain name is identical to Complainant’s mark pursuant to Policy
¶ 4(a)(i). See Gardline Surveys Ltd. v.
Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Complainant has made a prima
facie case that Respondent lacks rights and legitimate interests in the
disputed domain name under Policy ¶ 4(a)(ii), and the burden shifts to
Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum
There is no evidence in the record that
indicates that Respondent has a trademark or any other registered mark in
relation to the disputed domain name. Respondent
is not the owner or beneficiary of a trademark or service mark that is
identical to the disputed domain name sufficient for establishing rights in the
<nfib.us> domain name pursuant to Policy ¶ 4(c)(ii). See
Meow Media Inc. v. Basil, FA 113280
(Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that
Respondent was the owner or beneficiary of a mark that is identical to the
<persiankitty.com> domain name);
see also Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum
Complainant neither confirms nor denies that
Respondent is or could be commonly known by the disputed domain name. Nonetheless, when the Respondent’s WHOIS information
provides no information inferring such, 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
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration
and Use in Bad Faith
Respondent has registered the <nfib.us>
domain name primarily for
the purpose of slander and defamation of Complainant for the purpose of
disrupting Complainant’s business. The
disputed domain name is identical to Complainant’s mark and contains Complainant’s
marks and logos on the website that resolves there from. As a result, the <nfib.us> domain name was registered or is being used in bad
faith to compete with and divert business from Complainant pursuant to Policy ¶
4(b)(iii). See Puckett,
Individually v. Miller, D2000-0297 (WIPO
The Panel finds that Policy ¶
4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nfib.us> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 17, 2008
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