PH4 Corporation v. Doug Proudfit
Claim Number: FA0712001119351
Complainant is PH4 Corporation (“Complainant”), represented by Abby
C. Moskovitz, of Dobrusin & Thennisch PC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <suncityanthemhomes.com>, registered with eNom, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On January 7, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 28, 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 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:
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <suncityanthemhomes.com> domain name.
3. Respondent registered and used the <suncityanthemhomes.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Del Webb Corporation, a licensee of PH4
Corporation, is a leading builder of active adult communities for people 55 and
older. Complainant has used the
Respondent registered the <suncityanthemhomes.com>
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.
Registration with the USPTO establishes rights in
Complainant contends that Respondent’s <suncityanthemhomes.com> domain name is confusingly
similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <suncityanthemhomes.com> domain name. When a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel holds that in this case, Complainant has established a prima facie case. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Due to Respondent’s failure to respond to the Complaint, the
Panel may assume that Respondent does not have rights or legitimate interests
in the disputed domain name. See Broadcom Corp. v.
Ibecom PLC, FA 361190 (Nat. Arb. Forum
Complainant asserts that Respondent is neither commonly
known by the <suncityanthemhomes.com> domain name, nor licensed to
register domain names using the
Complainant contends that Respondent is using the <suncityanthemhomes.com> domain name in order to divert Internet users to the <proudfitrealty.com> domain name in order to offer homes for sale in direct competition with Complainant. The Panel finds that intentionally diverting unknowing Internet users to a competing website by a domain name which is confusingly similar to a complainant’s mark is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of the <suncityanthemhomes.com>
to directly compete with Complainant is evidence of bad faith. The Panel finds that a registered domain name
used primarily to disrupt the business prospects of a competitor is an
illustration of bad faith registration and use pursuant to Policy ¶
4(b)(iii). See Puckett,
Individually v. Miller, D2000-0297 (WIPO
In addition, Respondent is using the <suncityanthemhomes.com> domain name in order to intentionally divert Internet users by creating the possibility of confusion that the disputed domian name is associated with Complainant, then commercially gaining from the confusion by offering homes for sale, which directly competes with Complainant. The Panel finds such use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
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 <suncityanthemhomes.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 12, 2008
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