Metro Candy & Nut, Inc. v. Domain Holdings c/o Eric Keller
Claim Number: FA0803001159820
Complainant is Metro Candy & Nut, Inc. (“Complainant”), represented by Pamela
S. Burnt,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <metrocandyandnut.com>, registered with Godaddy.com, Inc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March
20, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
April 9, 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@metrocandyandnut.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <metrocandyandnut.com> domain name is identical to Complainant’s METRO CANDY & NUT mark.
2. Respondent does not have any rights or legitimate interests in the <metrocandyandnut.com> domain name.
3. Respondent registered and used the <metrocandyandnut.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Metro Candy & Nut, Inc.,
is a
Respondent is currently using the <metrocandyandnut.com> domain name to resolve to a website
featuring links to Complainant’s competitors.
Respondent registered the <metrocandyandnut.com>
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 is not required to own a trademark registration
to establish rights in the METRO CANDY & NUT mark under Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood,
D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the
complainant's trademark or service mark be registered by a government authority
or agency for such rights to exist); see also Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum
Complainant has established common law rights in the METRO
CANDY & NUT mark through continuous and extensive use of the mark in
connection with its snack distributorship and wholesale business. Complainant
has used its mark throughout the
Complainant alleges that Respondent’s <metrocandyandnut.com> domain name is identical to Complainant’s METRO CANDY & NUT mark. The disputed domain name contains
Complainant’s entire mark but removes spaces between words, substitutes the
ampersand with the generic word “and”, and adds a generic top-level domain name
(“gLTD”) “.com.” As punctuation is not
possible in domain names, the presence of the word “and” to replace an
ampersand is irrelevant to a Policy ¶ 4(a)(i)
analysis. The Panel finds these slight
variations are irrelevant in distinguishing the disputed domain name from
Complainant’s mark and concludes that Respondent’s <metrocandyandnut.com> domain name is identical to
Complainant’s METRO CANDY & NUT mark.
See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate
interests in the <metrocandyandnut.com>
domain name. Once Complainant makes
a prima facie case in support of its
allegations, the burden shifts to Respondent to show it does have rights or
legitimate interests under 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 may assume Respondent does not have rights or legitimate
interests in the disputed domain name. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Complainant alleges that Respondent
is not commonly known by the <metrocandyandnut.com>
domain name. The WHOIS information
identifies Respondent as “Eric Keller.”
The Panel finds no other evidence in the record suggesting Respondent is
commonly known by the disputed domain name.
Therefore, the Panel concludes that Respondent lacks rights and
legitimate interests in the <metrocandyandnut.com>
domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent maintains a website at <metrocandyandnut.com> that features links to Complainant’s competitors. The Panel finds that this use of the domain name <metrocandyandnut.com> 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 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 Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites 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) because the registrant presumably receives compensation for each misdirected Internet user).
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 competitors’
websites, through the confusion caused by the similarity between the METRO
CANDY & NUT mark and the <metrocandyandnut.com>
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 advertising. 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 TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”)
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Claimant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <metrocandyandnut.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: April 28, 2008
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