DataFlux Corporation v. Ben Haddad
Claim Number: FA0802001155669
Complainant is DataFlux Corporation (“Complainant”), represented by Maury
M. Tepper, of Womble Carlyle Sandridge & Rice, PLLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <data-flux.net>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On March 6, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 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 firstname.lastname@example.org 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 <data-flux.net> domain name is confusingly similar to Complainant’s DATAFLUX mark.
2. Respondent does not have any rights or legitimate interests in the <data-flux.net> domain name.
3. Respondent registered and used the <data-flux.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, DataFlux Corp., provides businesses with
training and customized solutions for data integration and data quality issues
relating to sensitive computer data.
Complainant uses its DATAFLUX mark to identify these computer
software-related services to consumers. Complainant
also operates a website at the <dataflux.com> domain name. Complainant first registered its DATAFLUX
mark with the United States Patent and Trademark Office (“USPTO”) on
Respondent registered the <data-flux.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 provided evidence of the registration of its
DATAFLUX mark with the USPTO. The Panel
finds this evidence is sufficient to establish Complainant’s rights in its
DATAFLUX mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Inertia 3D, FA
1118154 (Nat. Arb. Forum
domain name fully incorporates Complainant’s DATAFLUX mark with the addition of
a hyphen and the generic top-level domain (“gTLD”) “.net.” The addition of a hyphen does not
significantly distinguish Respondent’s disputed domain name from Complainant’s
mark. Additionally, a gTLD is not
relevant in determining whether a disputed domain name is confusingly similar
to a mark because a gTLD is a required part of every domain name. Therefore, the Panel finds Respondent’s <data-flux.net> domain name is
confusingly similar to Complainant’s DATAFLUX mark pursuant to Policy ¶ 4(a)(i). See Sports Auth. Mich.
Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The
addition of a hyphen to Complainant's mark does not create a distinct
characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar
analysis.”); see also Easyjet
Airline Co. Ltd. v. Harding, D2000-0398 (WIPO June 22, 2000) (finding it
obvious that the domain name <easy-jet.net> was virtually
identical to the complainant's EASYJET mark and therefore that they are
confusingly similar); see also Gardline
Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights
or legitimate interests in the <data-flux.net>
domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts
to Respondent to prove it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii).
The Panel finds Complainant has established a prima facie case. Due to
Respondent’s failure to respond to the Complaint, the Panel assumes Respondent
does not have rights or legitimate interests in the disputed domain name. The Panel will nevertheless examine
the record to determine whether Respondent has rights or legitimate interests
pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Respondent is using the <data-flux.net>
domain name to “pass itself off” as
Complainant, presumably to mislead Complainant’s customers into contacting
Respondent. Respondent’s domain name
resolves to a website which imitates Complainant’s website, except for the
contact information which is presumably Respondent’s. The Panel finds Respondent’s attempt to pass
itself off as Complainant is not a use in connection with a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), or a legitimate
noncommercial or fair use of the disputed domain name pursuant to Policy ¶
4(c)(iii). See Am. Int’l Group, Inc. v. Busby,
FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent
attempts to pass itself off as the complainant online, which is blatant
unauthorized use of the complainant’s mark and is evidence that the respondent
has no rights or legitimate interests in the disputed domain name); see also MO Media LLC v. NeXt Age Technologies LTD, FA 220031 (Nat. Arb. Forum
Additionally, the record and WHOIS information do not
suggest Respondent is commonly known by the <data-flux.net>
domain name. Respondent is listed in the WHOIS information
as “Ben Haddad.” Also, the record
indicates Complainant has not authorized Respondent to utilize its DATAFLUX
mark. Thus, Respondent has not
established rights or legitimate interests in the <data-flux.net>
domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
website resolving from the disputed domain name copies Complainant’s official
website with the mere alteration of the contact information. Respondent’s use of the disputed domain name
creates a likelihood of confusion as to Complainant’s affiliation with the
website. Therefore, the Panel finds Respondent’s
use of the <data-flux.net>
domain name constitutes
bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See
Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum
Mar. 13, 2002) (finding that where the
complainant’s mark was appropriated at registration, and a copy of the
complainant’s website was used at the domain name in order to facilitate the
interception of the complainant’s customer’s account information, the
respondent’s behavior evidenced bad faith use and registration of the domain
name); see also Target
Brands, Inc. v. JK Internet Servs., FA 349108 (Nat. Arb. Forum
The Panel finds 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 <data-flux.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 10, 2008
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