Gregory A. Pearson v. Siarhei Biazberdy
Claim Number: FA0802001152669
Complainant is Gregory A. Pearson (“Complainant”), represented by Joseph
J. Weissman, of Johnson, Pope, Bokor, Ruppel & Burns,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hotrussianbride.net>, registered with MyDomain f/k/a Namesdirect.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On March 4, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 24, 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.
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 <hotrussianbride.net> domain name is confusingly similar to Complainant’s HOT RUSSIAN BRIDES mark.
2. Respondent does not have any rights or legitimate interests in the <hotrussianbride.net> domain name.
3. Respondent registered and used the <hotrussianbride.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns Romantic Tours, a
Respondent registered the <hotrussianbride.net> domain name on
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.
Complainant has established rights in the HOT RUSSIAN BRIDES
mark for purposes of Policy ¶ 4(a)(i). See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
Complainant contends that
domain name is confusingly similar to its HOT RUSSIAN BRIDES mark. The <hotrussianbride.net> domain name
differs from Complainant’s mark in three ways: (1) the spaces between the words
have been removed; (2) the letter “S” has been removed from the end of the term
“brides”; and (3) the generic top-level domain (“gTLD”) “.net” has been
added. The Panel finds that these
changes do not minimize or eliminate the resulting likelihood of confusion, and
so Respondent’s disputed domain name is not sufficiently distinguished from
Complainant’s mark pursuant to Policy 4(a)(i). See
Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16,
2000) (finding that the domain name <wembleystadium.net> is identical to
the WEMBLEY STADIUM mark); see also Universal City Studios, Inc. v. HarperStephens,
D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the
complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall
impression of the mark and thus made the disputed domain name confusingly
similar to it); see
also Little Six, Inc. v. Domain For
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <hotrussianbride.net> domain name. Under Policy ¶ 4(a)(ii), after the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing evidence that it does have rights and legitimate interests in the disputed domain name. Complainant has made a prima facie case under Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Complainant contends that Respondent is not commonly known by the disputed domain name, <hotrussianbride.net>, nor have they ever been the owner or licensee of the HOT RUSSIAN BRIDES mark. Respondent has been identified as “Siarhei Biazberdy,” and nothing in the WHOIS record for the disputed domain name lists the Respondent as any variant on HOT RUSSIAN BRIDES. Instead, the <hotrussianbride.net> domain name resolves to a website that holds itself out as “Nude Russian Brides.” This evidence, along with the fact that Respondent has failed to show any evidence contrary to Complainant’s contentions, compels the Panel to find that Respondent is not commonly known as <hotrussianbride.net> pursuant to Policy ¶ 4(c)(ii). See 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.”); see also Great S. Wood Preserving, Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding that the respondent was not commonly known by the domain name <greatsouthernwood.com> where the respondent linked the domain name to <bestoftheweb.com>); 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).
Respondent maintains a website at <hotrussianbride.net> that subjects visitors to numerous pop-up ads and hyperlinks, many of which include adult-oriented material. The Panel finds that this use of the domain name <hotrussianbride.net> is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See De La Rue Holdings PLC v. Video Images Prods. L.L.C., FA 196054 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent was not using the <delaru.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because the respondent was using the domain name to “subject unsuspecting users to a barrage of unsolicited [pop-up] advertisements,” presumably for commercial benefit); see also Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to a website featuring adult-oriented material did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the disputed
domain name to divert internet customers from Complainant’s website to
Respondent’s website, through the confusion caused by the similarity between
the HOT RUSSIAN BRIDES mark and the <hotrussianbride.net>
domain name. The Panel finds that
Respondent’s use of the disputed domain name disrupts Complainant’s business,
and is evidence of registration and use in bad faith pursuant to Policy ¶ 4(b)(iii).
Complainant also contends that Respondent is gaining commercially through this diversion, both through click-through fees and through the competing services that Respondent is offering. The Panel finds that this is an intentional use of the disputed domain name for commercial gain through a likelihood of confusion with Complainant’s mark, and so, pursuant to Policy ¶ 4(b)(iv), this use is also evidence of registration and use in bad faith. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Toyota Motor Sales U.S.A. Inc. v. Clelland, FA 198018 (Nat. Arb. Forum Nov. 10, 2003) (“Respondent used <land-cruiser.com> to advertise its business, which sold goods in competition with Complainant. This establishes bad faith as defined in Policy ¶ 4(b)(iv).”).
Respondent uses the disputed domain name <hotrussianbride.net> to expose internet visitors to adult-oriented material through pop-up ads and hyperlinks to third-party websites. The Panel finds that this use also constitutes bad faith in the registration and use of the <hotrussianbride.net> domain name. See Microsoft Corp. v. Horner, D2002-0029 (WIPO Feb. 27, 2002) (holding that the respondent’s use of the complainant’s mark to post adult-oriented material and to publicize hyperlinks to additional adult-oriented websites evidenced bad faith use and registration of the domain name); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hotrussianbride.net> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: April 11, 2008
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