Virtual World Entertainment LLC v. Comdot Internet Services Private Limited
Claim Number: FA0801001128328
Complainant is Virtual World Entertainment LLC (“Complainant”), represented by Nickolas
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <battletech.com>, registered with Lead Networks Domains Pvt. Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On January 24, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 13, 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 timely response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 21, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
A deficient Response was subsequently received on February 25, 2008 and was not considered by the Panel.
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 <battletech.com> domain name is identical to Complainant’s BATTLETECH mark.
2. Respondent does not have any rights or legitimate interests in the <battletech.com> domain name.
3. Respondent registered and used the <battletech.com> domain name in bad faith.
B. Respondent failed to submit a timely Response in this proceeding; therefore, the Response was not considered.
Complainant, Virtual World Entertainment LLC, is a manufacturer and global supplier of arcade games as well as promotional items including hats, t-shirts, patches, keychains, and other miscellaneous products. Complainant is a licensee of the BATTLETECH mark which is registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,403,297 issued July 29, 1986). Complainant has licensed the mark from WizKids Games and Microsoft Corporation since 1990. BattleTech is a popular science fiction universe that has been the subject of hundreds of novels, boardgames, animated television programs, and video games.
Respondent registered the <battletech.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.
Complainant has submitted evidence of its rights as a
licensee of the BATTLETECH mark, which is registered with the USPTO. The Panel finds that Complainant’s licensed
rights in the registered mark sufficiently establishes rights in the mark for
purposes of Policy ¶ 4(a)(i). See Automotive Racing Products, Inc. v. Linecom,
FA 836787 (Nat. Arb. Forum
contends that Respondent’s <battletech.com>
domain name is identical to Complainant’s BATTLETECH mark. In Salud
Natural Entrepreneurs, Inc. v. Golden Omega LLC the Panel held that the addition
of the top-level domain “.com” to the NOPALINA mark is not a relevant
distinction for purposes of the UDRP. FA 1106474 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights or legitimate interests in the <battletech.com> domain name. In instances such as this, where Complainant has made a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain name. 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”).
Respondent is using the <battletech.com> domain name to resolve to a website that contains various sponsored links to commercial websites. The Panel finds that Respondent’s operation of a website at the disputed domain name for the purpose of collecting click-through fees for each misdirected Internet user is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Ali Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name as the respondent is merely using the domain name to operate a website containing links to various competing commercial websites, which 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 also 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).
Respondent has submitted no evidence that it is either
commonly known by the disputed domain name or authorized to register domain
names featuring Complainant’s mark. In
the absence of such evidence, the Panel finds that Respondent has not established
rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <battletech.com>
domain name for the purpose of collecting click-through fees for each
misdirected Internet user connected to another website. Internet users
searching for Complainant’s legitimate website will likely be confused when
stumbling upon Respondent’s domain name as to Complainant’s sponsorship of or
affiliation with the resulting website.
The Panel finds that Respondent is attempting to capitalize on such
confusion by collecting referral fees for each Internet user. Such use is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain
Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use
of the <mailonsunday.com> domain name is evidence of bad faith pursuant
to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's
competitors and Respondent presumably commercially benefited from the
misleading domain name by receiving ‘click-through-fees.’”); see also Drs. Foster & Smith, Inc. v. Lalli,
FA 95284 (Nat. Arb. Forum
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 <battletech.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 5, 2008
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