Farhad Parsie v. Nozomi McGarvie
Claim Number: FA0801001138722
Complainant is Farhad Parsie
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.
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.
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 email@example.com 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.
Complainant requests that the domain name be transferred from Respondent to 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.
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.”
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.
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.
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