national arbitration forum

 

DECISION

 

Alliant Techsystems, Inc. v. Nevis Domains

Claim Number: FA0803001163643

 

PARTIES

Complainant is Alliant Techsystems, Inc. (“Complainant”), represented by Karen A. Brennan, of Winthrop & Weinstine, P.A., Minnesota, USA.  Respondent is Nevis Domains (“Respondent”), Saint Kitts and Nevis.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <speerbullets.com>, registered with Moniker Online Services, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on March 14, 2008; the National Arbitration Forum received a hard copy of the Complaint on March 17, 2008.

 

On March 21, 2008, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <speerbullets.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name.  Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. 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 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 postmaster@speerbullets.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On April 23, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

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.

 

FINDINGS

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 August 12, 2002. 

 

Respondent registered the <speerbullets.com> domain name on August 23, 2006.  Respondent is currently using the disputed domain name to divert Internet users to a website that features advertisements and links to Complainant’s direct competitors.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

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.").

 

Respondent’s <speerbullets.com> 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., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity).

 

The Panel finds Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

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 Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent’s <speerbullets.com> 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 Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).

 

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.

 

DECISION

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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