Atrium Medical Corporation v. Ideal Yikilmaz Yazilim c/o Deniz Yikilmaz
Claim Number: FA0803001172417
Complainant is Atrium Medical Corporation (“Complainant”), represented by Sean
D. Detweiler, of Lahive & Cockfield, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <atriummedical.net>, registered with Domainpeople, 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.
Michelle Brownlee, Honorable Ralph Yachnin, and Sandra J. Franklin as Panelists, with Ms. Franklin serving as Chairperson.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
9, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
April 29, 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 <atriummedical.net> domain name is confusingly similar to Complainant’s ATRIUM mark.
2. Respondent does not have any rights or legitimate interests in the <atriummedical.net> domain name.
3. Respondent registered and used the <atriummedical.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant Atrium Medical Corporation holds trademark
registrations with the U.S. Patent and Trademark Office for ATRIUM, as well as
two Atrium logos, with use dating back to 1983.
Complainant uses the mark ATRIUM in connection with sales of its medical
products, including those for use in emergency procedures and surgery. Respondent registered the domain name <atriummedical.net> 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.
registered the ATRIUM mark with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 2,629,732 issued
The <atriummedical.net> domain name contains Complainant’s mark in its entirety with the addition of the word “medical.” The Panel finds that the addition of the word “medical” causes confusion because it describes Complainant’s business. The Panel also finds that the addition of the generic top-level domain “.com” does not affect an analysis under Policy ¶ 4(a)(i). See Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access the complainant’s website, think that an affiliation of some sort exists between the complainant and the respondent, when in fact, no such relationship would exist); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also 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 . . . .").
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Because Respondent failed to answer the Complaint, the Panel may find that Respondent lacks all rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); 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). However, the Panel will examine all evidence in the record to determine if Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant alleges that there is no evidence in the record or in the
WHOIS registration that Respondent is commonly known by the disputed domain
name. The Panel finds that Respondent is
not commonly known by the <atriummedical.net>
domain name under Policy ¶ 4(c)(ii).
See Gallup, Inc. v. Amish Country
Store, FA 96209 (Nat. Arb. Forum
Complainant alleges Respondent uses the disputed domain name to sell products in competition with Complainant’s business. The Panel finds that this use is not 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 Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the <atriummedical.net> domain name
to advertise related and competing services and products causes a disruption to
Complainant’s business and constitutes bad faith registration and use under
Policy ¶ 4(b)(iii). See Disney
Enters., Inc. v. Noel, FA 198805 (Nat.
Respondent’s disputed domain name is confusingly similar to Complainant’s
mark and is likely to cause confusion as to the source, sponsorship,
affiliation or endorsement of Respondent’s website, for Respondent’s commercial
gain, a further indication of bad faith under Policy ¶ 4(b)(iv). See Bank of Am. Corp. v.
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 <atriummedical.net> domain name be TRANSFERRED from Respondent to Complainant.
Michelle Brownlee, Panelist
Honorable Ralph Yachnin, Panelist
Sandra J. Franklin, Panelist and Chairperson
Dated: May 28, 2008
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