Claim Number: FA0801001138426
Complainant is Campus Church of Christ, Inc. (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <campuschurch.org>, registered with Register.com Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically January 16, 2008; the National Arbitration Forum received a hard copy of the Complaint January 22, 2008.
On January 22, 2008, Register.com Inc. confirmed by e-mail to the National Arbitration Forum that the <campuschurch.org> domain name is registered with Register.com Inc. and that Respondent is the current registrant of the name. Register.com Inc. verified that Respondent is bound by the Register.com Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 5, 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.
On March 11, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 that Respondent registered, <campuschurch.org>,
is identical to or confusingly similar to Complainant’s
2. Respondent has no rights to or legitimate interests in the <campuschurch.org> domain name.
3. Respondent registered and used the <campuschurch.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Campus Church of Christ, is a church located in
Complainant contracted with Respondent, Frank Shaw, the proprieter of Compexp, who operated a computer store located across the street from Complainant, to create the <campuschurch.org> domain name and establish the website associated with the disputed domain name. Shortly after Respondent closed down his computer store and moved to China, Complainant discovered that Respondent had registered the disputed domain name under his own name rather than Complainant’s and without Complainant’s authorization to do so.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 was registered and is being used in bad faith.
Complainant did not obtain a registered trademark for the
Complainant established common law rights in the
The disputed <campuschurch.org>
that Respondent registered is identical to Complainant’s
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks all rights and legitimate interests in the disputed domain names. When Complainant makes a prima facie case to support its allegations, the burden shifts to Respondent to prove that it does have rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that in this case, Complainant made the required prima facie showing. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); 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).
Given 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 CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the respondent’s failure to produce requested documentation supports a finding for the complainant); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). However, the Panel examines the evidence for applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Respondent’s registration of the disputed domain name under his name instead of Complainant’s name constitutes an attempt by Respondent to pass himself off as Complainant. The Panel finds that this type of action is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”).
Complainant contends that Respondent is not commonly known by the <campuschurch.org> domain name. Respondent’s WHOIS information indentifies Respondent as “Frank Shaw,” which gives no information that Respondent is commonly known by the disputed domain name and even though Respondent was hired to create the website, he was under contract and not an employee. Therefore, the Panel finds that without affirmative evidence of Respondent’s being commonly known by the disputed domain names, Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent registered the disputed domain name in his own name without Complainant’s authorization. The Panel finds that this constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii) because Respondent attempted to pass himself off as Complainant. See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the impression that the complainant endorsed and sponsored the respondent’s website).
In addition, Respondent had full knowledge of Complainant’s rights in the disputed domain name, yet Respondent proceeded to register the disputed domain name under his own name. The Panel finds this type of activity constitutes a bad faith use and registration pursuant to Policy ¶ 4(a)(iii). See Albrecht v. Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) (finding registration in bad faith based where there is no reasonable possibility, and no evidence from which to infer that the domain name was selected at random since it entirely incorporated the complainant’s name); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding bad faith when (1) the domain name contains the complainant’s mark in its entirety, (2) the mark is a coined word, well-known and in use prior to the respondent’s registration of the domain name, and (3) the respondent fails to allege any good faith basis for use of the domain name).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <campuschurch.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 24, 2008.
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