Leg Avenue, Inc. v. Katarzyna Sowa
Claim Number: FA0712001118851
Complainant is Leg Avenue, Inc.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <legavenue.org>, registered with Wild West Domains.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 10, 2008 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 email@example.com 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:
<legavenue.org> domain name
is identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <legavenue.org> domain name.
3. Respondent registered and used the <legavenue.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Leg Avenue, Inc., is a leading seller of
clothing, including lingerie, hosiery, underwear, and costumes. Its products have been profiled in fashion
publications and displayed on national television shows and news programs. Complainant owns a trademark registration for
Respondent registered the <legavenue.org> 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.
Complainant asserts rights in the
is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i) because it
incorporates Complainant’s mark, eliminates the space, and adds the generic
top-level domain (“gTLD”) “.org.” The
Panel finds that omitted spacing and an added gTLD are irrelevant for purposes
of Policy ¶ 4(a)(i). See Microsoft Corp. v.
Mehrotra, D2000-0053 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <legavenue.org> 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 in this case that Complainant has established a prima facie case. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
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 American 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) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel chooses to examine the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Complainant contends that Respondent is neither commonly
known by the <legavenue.org>
domain name nor licensed to register domain names using the
Complainant contends that Respondent is using the <legavenue.org> domain name in order to
attract Internet users to the corresponding website containing links to
third-party, adult-oriented websites. The
Panel assumes that such a practice is for the purpose of generating “pay-per-click”
revenue from Internet traffic that visits the webpage to which the disputed
domain name resolves. The Panel finds
that this type of practice 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
Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb.
Forum June 24, 2002) (holding that the respondent’s use of the disputed domain
name to redirect Internet users to commercial websites, unrelated to the
complainant and presumably with the purpose of earning a commission or
pay-per-click referral fee did not evidence rights or legitimate interests in
the domain name); see also
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is presumably using the <legavenue.org> domain name for the purpose of collecting click-through fees for each misdirected Internet user connected to the disputed domain name. Internet users searching for Complainant’s website will likely be confused into thinking that the <legavenue.org> domain name is affiliated with or sponsored by Complainant. The Panel finds that Respondent’s registration and use of the disputed domain name under these circumstances is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also American 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.”).
Additionally, the Panel finds that Respondent’s <legavenue.org> domain name containing third-party links to adult-oriented material illustrates bad faith pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).
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 <legavenue.org> domain name be TRANSFERRED from Respondent to Complainant.
Dated: January 29, 2008
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