Dynaflex International, Inc. v.
Claim Number: FA0712001124334
Complainant is Dynaflex International, Inc. (“Complainant”), represented by Clement Cheng, 17220 Newhope Street #127, Fountain Valley, CA 92708-4283. Respondent is Paramount Goods LLC (“Respondent”), represented by Joshua R. Cotherman, 140 High Acres Road, Harmony, PA 16037.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <epowerball.com>, registered with Godaddy.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 4, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 24, 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 postmaster@epowerball.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <epowerball.com> domain name is confusingly similar to Complainant’s POWERBALL mark.
2. Respondent does not have any rights or legitimate interests in the <epowerball.com> domain name.
3. Respondent registered and used the <epowerball.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dynaflex International, Inc.,
manufactures and sells manually operated gyroscopic wrist exercisers. Complainant is the exclusive licensee of
several
Respondent registered the <epowerball.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.
First, the Panel finds that Complainant’s trademark
registration of the POWERBALL mark with the USPTO sufficiently establishes
Complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Respondent’s <epowerball.com>
domain name incorporates Complainant’s POWERBALL mark in its entirety and
merely adds the letter “e” onto the beginning of the mark. Such a slight alteration is not sufficient to
distinguish the disputed domain name from Complainant’s mark. Moreover, the inclusion of the generic
top-level domain “.com” is irrelevant to the UDRP analysis, as a top-level
domain is required of all domain names.
Therefore, the Panel finds that Respondent’s <epowerball.com> domain name is confusingly similar to
Complainant’s POWERBALL mark pursuant to Policy ¶ 4(a)(i). See EBAY, Inc. v. MEOdesigns,
D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent’s domain name
<eebay.com> is confusingly similar to the complainant’s registered EBAY
trademark); see also Int’l Data Group, Inc. v. Maruyama & Co., Ltd., D2000-0420 (WIPO June
26, 2000) (finding that the domain name <ecomputerworld.com> is
confusingly similar to the complainant’s mark, COMPUTERWORLD); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO
Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD)
name ‘.com’ is . . . without legal significance since use
of a gTLD is required of domain name registrants . . . ."); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063
(Nat. Arb. Forum
The Panel thus finds that Policy ¶ 4(a)(i)
has been satisfied.
The Panel recognizes that the initial burden lies with Complainant to show that Respondent lacks rights and legitimate interests in the <epowerball.com> domain name. Once Complainant has made a prima facie case, however, the burden then shifts to Respondent to rebut this showing. In the present case, the Panel finds that Complainant has established a prima facie case under the Policy. 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”); 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).
Respondent failed to file an answer to the Complaint in this
case. Thus, the Panel presumes that
Respondent has no rights or legitimate interests in the <epowerball.com> domain name.
See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Complainant asserts that Respondent is not commonly known by the <epowerball.com> domain name, as communications with Respondent indicate that Respondent is “Paramount Goods LLC,” and there is no other evidence in the record to suggest that Respondent is known by the disputed domain name. In addition, Respondent is not affiliated with Complainant in any way and is not permitted to use Complainant’s POWERBALL mark. Accordingly, the Panel finds that Respondent is not commonly known by the <epowerball.com> domain name and thus lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The <epowerball.com>
domain name resolves to a commercial website selling gyroscopic wrist
exercisers in direct competition with Complainant’s products, and the Panel
presumes that Respondent profits when Internet users purchase products from
this website. Therefore, the Panel finds
that Respondent is not using the <epowerball.com>
domain name in connection with either a bona
fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). Under Policy ¶ 4(a)(ii),
this further indicates Respondent’s lack of rights and legitimate interests in
the disputed domain name. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent
to divert Internet users seeking Complainant's website to a website of
Respondent and for Respondent's benefit is not a bona fide offering of goods or
services under Policy ¶ 4(c)(i) and it is not a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Computerized Sec.
Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s
appropriation of [Complainant’s] SAFLOK mark to market products that compete
with Complainant’s goods does not constitute a bona fide offering of goods and
services.”).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Finally, Complainant asserts that Respondent is using the <epowerball.com> domain name to market products in direct competition with Complainant. The Panel finds that this constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the complainant's marks suggests that the respondent, the complainant’s competitor, registered the names primarily for the purpose of disrupting the complainant's business); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent).
Furthermore, the Panel presumes that Respondent benefits commercially when Internet users purchase products from the website that resolves from the <epowerball.com> domain name. Respondent is thus taking advantage of the goodwill associated with Complainant’s POWERBALL mark by creating the likelihood that users will be confused as to the source of the disputed domain name and Complainant’s affiliation with the corresponding website. This is further evidence of Respondent’s bad faith registration and use of the <epowerball.com> domain name pursuant to Policy ¶ 4(b)(iv). See Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
The Panel thus 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 <epowerball.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 11, 2008
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