national arbitration forum

 

DECISION

 

Wood Manufacturing Company, Inc. v. Art Board IV

Claim Number:  FA0801001138438

 

PARTIES

Complainant is Wood Manufacturing Company, Inc. (“Complainant”), represented by William Schultz, of Merchant & Gould, P.C., Minnesota, USA.  Respondent is Art Board IV (“Respondent”), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com>, registered with Godaddy.com, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

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 21, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names.  Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 22, 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@myrangerboat.com, postmaster@rangerboatforum.com, and postmaster@rangerboatsforum.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On February 15, 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.

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names are confusingly similar to Complainant’s RANGER BOATS ROAD ARMOR EQUIPPED mark.

 

2.      Respondent does not have any rights or legitimate interests in the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names.

 

3.      Respondent registered and used the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Wood Manufacturing Company, Inc., manufactures genuine Ranger boats and related products.  Complainant holds a registered trademark in the RANGER BOATS ROAD ARMOR EQUIPPED mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,964,382, issued June 28, 2005).  Additionally Complainant holds trademark registrations for  many variations of the RANGER BOATS ROAD ARMOR EQUIPPED mark, as well as the <rangerboats.com> domain name.

 

Respondent registered the <rangerboatforum.com>, and <rangerboatsforum.com> domain names on March 21, 2007.  Respondent registered the <myrangerboat.com> domain name on March 22, 2007.  The disputed domain names currently forwards Internet users to Respondent’s blog, hosted at <bigbasscentral.zeroforum.com> which advertises and sells products in direct competition with Complainant.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

Complainant registered the RANGER BOATS ROAD ARMOR EQUIPPED mark with the USPTO, and has therefore established rights to the mark pursuant to Policy ¶ 4(a)(i).  See U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).

 

The Panel finds that the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names are confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). The addition of the general terms “my,” and “forum,” as well as the addition of the letter “s” does not negate the similarities to the RANGER BOATS ROAD ARMOR EQUIPPED mark. Additionally, the removal of the words “road,” “armor,” and “equipped” from the registered mark is insufficient to reverse the similarities because the disputed domain name still contains the dominant elements of Complainant’s mark.  See Nat’l Geographic Soc’y v. Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to the complainant’s NATIONAL GEOGRAPHIC mark); see also WestJet Air Ctr., Inc. v. W. Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to the complainant’s mark, where the complainant holds the WEST JET AIR CENTER mark); see also Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element).

 

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant claims that Respondent has neither rights nor legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii).  Complainant has the initial burden of showing the Respondent does not have rights or legitimate interests in the disputed domain names.  Once Complainant has made a prima facie case, the burden shifts to Respondent.  The Panel finds that Complainant has met the initial burden of showing that Respondent lacks rights and legitimate interests, and therefore has made a prima facie case under Policy ¶ 4(a)(ii).  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).

 

Because Respondent failed to answer the Complaint, the Panel presumes that Respondent lacks all rights and legitimate interests in the disputed domain names.  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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).  Nevertheless, the Panel will examine all evidence in the record to determine if Respondent does have rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).

 

Complainant asserts that Respondent has never been authorized to use the RANGER BOATS ROAD ARMOR EQUIPPED mark or its variations, and that Respondent is not and has never been commonly known by the disputed domain names.  Further, the WHOIS information does not indicate that Respondent is commonly known by the disputed domain names.  Thus, the Panel finds that Respondent is not commonly known by the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> 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 Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).

 

Respondent is using the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names to redirect to Respondent’s blog, which advertises and sells products in direct competition with Complainant’s business.  The Panel finds that such use is not 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).  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 established Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent’s use of the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names 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 Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). 

 

Complainant contends that Respondent is using the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names for commercial gain by advertising links to competing services, and benefiting from the likely confusion between Complainant’s mark and the disputed domain names.  The Panel finds that the similarity between the disputed domain names and the RANGER BOATS ROAD ARMOR EQUIPPED mark are likely to create confusion as to Complainant’s source, sponsorship, affiliation, or endorsement of the website that resolves from the disputed domain names and therefore serves as evidence of bad faith registration and use under Policy ¶ 4(b)(iv).  See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).

 

The Panel finds that Complainant has established Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <myrangerboat.com>, <rangerboatforum.com>, and <rangerboatsforum.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated:  February 28, 2008

 

 

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