Alliant Techsystems, Inc. v.
Claim Number: FA0803001163643
Complainant is Alliant Techsystems, Inc. (“Complainant”), represented by Karen
A. Brennan, of Winthrop & Weinstine, P.A.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <speerbullets.com>, registered with Moniker Online Services, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On March 27, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 16, 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 <speerbullets.com> domain name is confusingly similar to Complainant’s SPEER mark.
2. Respondent does not have any rights or legitimate interests in the <speerbullets.com> domain name.
3. Respondent registered and used the <speerbullets.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alliant Techsystems, Inc.,
is a national company whose Ammunition Systems business group produces
commercial and military ammunition, including bullets, targets, loaders, and
mounting systems. Since 1946,
Complainant has marketed some of its ammunition products under the SPEER mark
(Reg. No. 1,102,083 issued September 12, 1978), which was registered with the
United States Patent and Trademark Office (“USPTO”). Complainant obtained all of the rights to the
SPEER mark from Blount, Inc. on
Respondent registered the <speerbullets.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 has set forth sufficient evidence of its rights in the SPEER mark through registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
domain name includes Complainant’s entire and unaltered SPEER mark, adds the
generic word “bullets,” and affixes the generic top-level domain (“gTLD”)
“.com.” The addition of a top-level domain
is always irrelevant to a Policy ¶ 4(a)(i) analysis, and the attachment of a
generic word falls short of rendering the disputed domain name sufficiently
distinct under Policy ¶ 4(a)(i), especially when the generic word “bullets” fairly
describes Complainant’s operations.
Therefore, the Panel finds that the disputed domain name is confusingly
similar to Complainant’s SPEER mark pursuant to Policy ¶ 4(a)(i). See Busy Body, Inc. v. Fitness Outlet Inc.,
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <speerbullets.com> domain name. Because Complainant has successfully asserted a prima facie case supporting its allegations, Respondent receives the burden to prove that it does have rights or legitimate interests under Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s disputed domain name siphons Internet users to a website consisting of advertisements and links to Complainant’s direct competitors. Respondent presumably benefits from this venture through the receipt of referral fees. Therefore, the Panel finds that Respondent’s use of the disputed domain name wholly fails to constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See 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); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
There is no evidence in the record, including the WHOIS
domain name registration information, to suggest that Respondent is commonly
known by the <speerbullets.com>
domain name. First, the registrant is
listed as “Nevis Domains,” which bears no resemblance to the disputed domain
name. Respondent was never licensed to
use Complainant’s SPEER mark. Thus, the Panel finds that Respondent lacks
rights and legitimate interests in the disputed domain name pursuant to Policy
¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
domain name merely diverts Internet users seeking Complainant’s products to a
website that presents third-party advertisements. Given the directly competitive nature of these
ads, the Panel infers an intent by Respondent to
register the confusingly similar disputed domain name to disrupt Complainant’s
operations. Therefore, the Panel finds
that Respondent has engaged in bad faith registration and use pursuant to
Policy ¶ 4(b)(iii).
See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Respondent presumably receives referral fees through the display of third-party advertisements on its website. Internet users seeking Complainant’s ammunition products will be unwittingly redirected to Respondent’s website, which features links to Complainant’s direct competitors, creating a likelihood of confusion. The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name 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 <speerbullets.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 30, 2008
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