Children's Miracle Network v. Whois Protection
Claim Number: FA0711001115076
Complainant is Children's Miracle Network (“Complainant”), represented by John
A. Beckstead, of
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <childrensmiraclenetwork.com>, registered with Rebel.com.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 28, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 30, 2007.
On November 28, 2007, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <childrensmiraclenetwork.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.com 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 December 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 26, 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@childrensmiraclenetwork.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 28, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant holds several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHILDREN’S MIRACLE NETWORK mark (including Reg. No. 1553246, issued August 22, 1989) in connection with a wide range of services relating to charitable fundraising and providing health care information through radio and television programming.
Respondent registered the disputed <childrensmiraclenetwork.com> domain name on March 25, 2007.
Respondent is neither commonly known by the <childrensmiraclenetwork.com> domain name nor licensed to register names using the famous CHILDREN’S MIRACLE NETWORK mark.
Respondent’s disputed domain name resolves to a website which, before October 17, 2007, contained links to third-party websites relating in nature to children’s hospitals and health care alternatives.
Respondent is using thus the <childrensmiraclenetwork.com> domain name to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s CHILDREN’S MIRACLE NETWORK mark and offering links to third-party websites presumably for commercial gain.
Respondent’s <childrensmiraclenetwork.com> domain name is identical to Complainant’s CHILDREN’S MIRACLE NETWORK mark.
Respondent does not have any rights or legitimate interests in the domain name <childrensmiraclenetwork.com>.
Respondent registered and uses the <childrensmiraclenetwork.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the CHILDREN’S MIRACLE NETWORK mark through registration of the mark with the USPTO. 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 Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003): “Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”
Complainant contends that Respondent’s <childrensmiraclenetwork.com> domain name is identical to Complainant’s CHILDREN’S MIRACLE NETWORK mark. Respondent’s domain name contains the Complainant’s mark in its entirety, but omits an apostrophe and the spaces between the words, and adds the generic top-level domain (“gTLD”) “.com.” The addition of gTLD “.com” and omission of punctuation marks and spaces are irrelevant in finding a domain name to be identical with a trademark for purposes of Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to a complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also 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 a domain name for purposes of determining whether it is identical or confusingly similar to a competing mark); further see Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); and see Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding the <wembleystadium.net> domain name identical to the WEMBLEY STADIUM mark).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights to or legitimate interests in the <childrensmiraclenetwork.com> domain name. Once Complainant makes out a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where a complainant asserts that a respondent has no rights or legitimate interests with respect to a domain name, it is incumbent on that respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant has established a prima facie case. And, because of Respondent’s failure to respond to the Complaint, we may assume that Respondent does not have rights or legitimate interests in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where a respondent fails to respond); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, a respondent failed to invoke any circumstance which could demonstrate any rights or legitimate interests in a domain name). However, we will nonetheless examine the evidence of record to determine if there is any basis for concluding that Respondent has rights or interests as contemplated in Policy ¶ 4(c).
We begin by noting that Complainant contends that Respondent is neither commonly known by the <childrensmiraclenetwork.com> domain name nor licensed to register names using the famous CHILDREN’S MIRACLE NETWORK mark. Respondent does not contest this allegation. Therefore, in the absence of evidence suggesting otherwise, Respondent has not established rights to or legitimate interests in the domain name <childrensmiraclenetwork.com> under the Policy ¶4 (c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for a panel to draw adverse inferences from a respondent’s failure to reply to a complaint); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence).
We also note that Complainant contends that Respondent is
using the disputed domain name to lure Internet users to a website that
contains links to third-party websites related to children’s hospitals and
health care alternatives, presumably in order to generate advertising revenue
and thus to benefit Respondent. Again,
Respondent does not contest this allegation.
We therefore conclude that Respondent’s operation of a website at the
disputed domain name for the purpose of collecting advertising revenues for
each misdirected Internet user is neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003): “Diverting
customers, who are looking for products relating to the famous SEIKO mark, to a
website unrelated to the mark is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i), nor does it represent a noncommercial
or fair use under Policy ¶ 4(c)(iii).”); see also
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent is using the <childrensmiraclenetwork.com> domain
name to attract Internet users to its website by creating a likelihood of
confusion with the Complainant’s CHILDREN’S MIRACLE NETWORK mark and offering
links to third-party websites presumably for commercial gain. This allegation is undisputed. Such use is in
bad faith pursuant to the Policy ¶4(b)(iv). See H-D Michigan, Inc.
v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003)
(finding that a disputed domain name was registered and used in bad faith
pursuant to Policy ¶ 4(b)(iv) through a respondent’s registration and use of an
infringing domain name to attract Internet users to its fraudulent website by
using a complainant’s famous marks and likeness); see also 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.
In addition, it appears that Respondent registered the <childrensmiraclenetwork.com> domain name
with at least constructive knowledge of Complainant’s rights in the CHILDREN’S MIRACLE NETWORK trademark by virtue of Complainant’s prior
registration of that mark with the United States Patent and Trademark
Office. Registration of an identical
domain name despite such constructive knowledge is, without more, evidence of
bad faith registration and use of the domain name pursuant to Policy ¶
4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct.
24, 2002); see also Orange Glo
Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <childrensmiraclenetwork.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: January 3, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum