Harmony Cove, Ltd. v. Dale Forrester
Claim Number: FA0801001138428
Complainant is Harmony Cove, Ltd. (“Complainant”), represented by Lori
T. Milvain,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <harmonycove.org>, registered with Tucows 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 16, 2008; the National Arbitration Forum received a hard copy of the Complaint on January 17, 2008.
On January 17, 2008, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <harmonycove.org> domain name is registered with Tucows Inc. and that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is bound by the Tucows Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 21, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 11, 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@harmonycove.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 18, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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 <harmonycove.org> domain name is identical to Complainant’s HARMONY COVE mark.
2. Respondent does not have any rights or legitimate interests in the <harmonycove.org> domain name.
3. Respondent registered and used the <harmonycove.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Harmony Cove, Ltd., is a leader in resort and travel services. Complainant has used its mark in association with that business since 2005. Complainant holds a trademark registration in the HARMONY COVE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,311,696 issued on Oct. 16, 2007, filed on Feb. 18, 2005) as well as the Jamaica Trademark Office. Complainant also controls websites located at the <harmonycoves.com> and <harmonycovejamaica.com> domain names.
Respondent registered the disputed domain name on June 25, 2005. The <harmonycove.org> domain name currently resolves to a website containing third-party links, some of which are in direct competition with Complainant’s business.
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.
Although the registration of the disputed domain name predates the registration of Complainant’s mark, the Panel finds that rights are conferred upon the date of filing with the USPTO. The filing date of the HARMONY COVES mark predates the registration of the disputed domain name. The Panel finds that this establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Phoenix Mortgage Corp. v. Toggas, D2001-0101 (WIPO Mar. 30, 2001) (“The effective date of Complainant's federal rights is . . . the filing date of its issued registration. Although it might be possible to establish rights prior to that date based on use, Complainant has submitted insufficient evidence to prove common law rights before the filing date of its federal registration.”); see also Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”).
Respondent’s disputed domain name is identical to the Complainant’s HARMONY COVE mark. The only difference is the addition of a generic top-level domain “.org.” The Panel finds that this addition, since required on all domain names, does not affect a Policy ¶ 4(a)(i) analysis. See Koninklijke Philips Elecs. NV v. Goktas, D2000-1638 (WIPO Feb. 8, 2001) (finding that the domain name <philips.org> is identical to the complainant’s PHILIPS mark); see also BMW AG v. Loophole, D2000-1156 (WIPO Oct. 26, 2000) (finding that there is “no doubt” that the domain name <bmw.org> is identical to the complainant’s well-known and registered BMW trademarks).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and legitimate interests in the <harmonycove.org> domain name. Complainant has the burden of proof for this allegation pursuant to Policy ¶ 4(a)(ii). Once Complainant has made a prima facie showing, the burden of proof shifts to Respondent. The Panel finds the Complainant has met its burden. 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’s failure to respond to the Complaint allows the Panel to assume Respondent has no rights or legitimate interests in the <harmonycove.org> domain name. See Am. 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 Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”). Nonetheless, the Panel will examine the record to determine legitimate rights or interests under Policy ¶ 4(a)(ii).
Complainant alleges that Respondent is not commonly known by
<harmonycove.org> domain name pursuant to Policy ¶ 4(c)(ii). The record contains nothing to suggest
Respondent is commonly known by disputed domain name. Further, the WHOIS information does
not indicate that Respondent is commonly known by the disputed domain name. Respondent is
in no way licensed or authorized to use the HARMONY COVE trademark. The Panel finds that Respondent has no rights
or legitimate interests to the <harmonycove.org> domain name under 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 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).
The <harmonycove.org> domain name resolves to a website containing links to competing third-party websites. The Panel presumes that Respondent is using the domain name for monetary gain, by capitalizing on the good reputaiton of Complainant’s mark. The Panel finds this is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use under 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 Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that Respondent’s use of the <harmonycove.org> domain name to
commercially gain by advertising links to competing services constitutes bad
faith registration and use under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Respondent’s use of the <harmonycove.org> domain name, which is identical to Complainant’s HARMONY COVE mark, is likely to cause confusion to customers searching for Complainant’s goods and services. There may be confusion regarding Complainant’s affiliation, endorsement, or sponsorship of the links advertised on Respondent’s website. The Panel can assume Respondent is commercially benefiting from this confusion. Based on the findings, the Panel concludes the registration and use of the <harmonycove.org> domain name constitutes bad faith under Policy ¶ 4(b)(iv). See Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because the respondent's sole purpose in selecting the domain names was to cause confusion with the complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use); see also Bank of Am. Corp. v. Out Island Props., Inc., FA 154531 (Nat. Arb. Forum June 3, 2003) (stating that “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website” in holding that the domain names were registered and used in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds Complainant has 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 <harmonycove.org> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 28, 2008
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