Farhad Parsie v. Nozomi
McGarvie
Claim Number: FA0801001138722
PARTIES
Complainant is Farhad Parsie
(“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vievie.net>,
registered with Gmo Internet, Inc. d/b/a Onamae.com and Discount-Domain.com.
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.
R. Glen Ayers, Jr. served as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint in both English and Japanese to the
National Arbitration Forum electronically on January
17, 2008; the National Arbitration Forum received a hard copy of the
Complaint on January 17, 2008.
On January 21, 2008, Gmo Internet, Inc. d/b/a Onamae.com and
Discount-Domain.com confirmed by e-mail to the National Arbitration
Forum that the <vievie.net> domain name is registered with Gmo Internet, Inc. d/b/a Onamae.com and
Discount-Domain.com and that the Respondent is the current registrant of
the name. Gmo Internet, Inc. d/b/a Onamae.com and Discount-Domain.com has
verified that Respondent is bound by the Gmo
Internet, Inc. d/b/a Onamae.com and Discount-Domain.com 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 30, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of February 19, 2008 by which
Respondent could file a Response to the Complaint, was transmitted to Respondent
in both English and Japanese 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@vievie.net
by e-mail.
A timely Response was received electronically on February 11, 2008. However, the Response was deemed deficient
pursuant to ICANN Rule 5(b) because a hard copy of the Response was received
untimely.
(1) Given that the Response was
actually received, and (2) that the Response states that Respondent has
essentially waived any interest that she may have in the domain name, the
Panelist has determined to consider the Response so as to be able to render a
ruling consistent with both the Complaint and Response.
On February 20, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed R. Glen Ayers, Jr. as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be
transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant alleges that it holds a trademark which is identical to or
confusingly similar to the domain name.
Complainant has introduced evidence of its registration of the mark with
the United States Patent and Trademark Office and other trademark registration
authorities. The registration
demonstrates ownership and the fact that the mark and name are identical except
for the addition of “.net.”
As to rights in the name, Complainant has alleged that Respondent is
not known by the name “VIEVIE” and is only known by her personal name. Complainant has further alleged that the
registration was in bad faith and has alleged that both Respondent and the
predecessor registrant of the domain name are both in the business of selling
domain names on the secondary market.
B. Respondent
Respondent has filed a technically deficient Response, for no hard copy
was timely received, although the electronic copy was timely received. As indicated above, the Panelist has determined
to consider that technically deficient Response because the Response
essentially “admits” the allegations of the Complaint. The Response states:
“I have removed my website and am not
planning to publish the website any longer.
This is my official Response.”
FINDINGS
The Panelist finds that Complainant has
clearly established with competent evidence the registration of its trademark,
which is obviously identical to or confusingly similar to the domain name. See,
e.g., Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9,
2007).
Complainant has also made a prima facie case that Respondent lacks rights and legitimate interest in the domain name under Policy ¶ 4(a)(i). Complainant’s prima facie case consists of showing that Respondent and her predecessor are not commonly known by the domain name.
Once the prima facie case as to rights in the
name is made, the burden shifts to Respondent.
See, e.g., Hanna-Barbera
Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Of course, Respondent has not rebutted the prima facie case by the filing of her Response, for that Response is an admission or waiver.
Finally,
Complainant has stated a prima facie
case of bad faith by alleging that Respondent and her predecessor in interest
are engaged in the registration or acquisition of domain names and the resale
of domain names. This practice allows
the Panelist to make an inference that there is bad faith, including an attempt
to profit from the good will of Plaintiff’s mark. See,
e.g., Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29,
2000). Because Complainant established a
prima facie case, but Respondent made
no attempt to rebut that prima facie
case, or the allegations concerning the nature of Respondent’s business, the
Panelist finds bad faith has been established.
DISCUSSION
Paragraph 15(a) of the
Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that
the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
The mark and domain name are identical.
Complainant has established a prima facie claim that Respondent has no
legitimate interest in the name, and Respondent has not filed any rebuttal.
Complainant’s allegations of bad faith are
sufficient to establish a prima facie
case, given the Response. The Response
does not rebut the allegations.
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 <vievie.net> domain name be TRANSFERRED
from Respondent to Complainant.
R. GLEN AYERS, JR., Panelist
Dated: March 5, 2008