Inmate Connections LLC v. Bad Boy Networks c/o Dave Carlin
Claim Number: FA0804001177352
Complainant is Inmate Connections LLC (“Complainant”), represented by Carolyn
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <inmateconnections.com>, registered with Enom, 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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On April
16, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 6, 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@inmateconnections.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 <inmateconnections.com> domain name is identical to Complainant’s INMATE CONNECTIONS mark.
2. Respondent does not have any rights or legitimate interests in the <inmateconnections.com> domain name.
3. Respondent registered and used the <inmateconnections.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant operates an online prisoner pen pal service at
<inmate-connections.com>, where it publishes profiles of incarcerated men
and women and provides an inmate search and an online inmate locator
service. Complainant registered the
INMATE CONNECTIONS mark with the United States Patent and Trademark Office
(“USPTO”) on
Respondent registered the <inmateconnections.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 contends that it has established common law
rights in the INMATE CONNECTIONS mark by continuously using the mark in
commerce since
Further, Complainant asserts rights in the INMATE
CONNECTIONS mark through registration of the mark with the USPTO. Complainant’s trademark application was filed
on
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and
legitimate interests in the
domain name at issue. Once
Complainant makes a prima facie case
in support of its allegations, the burden shifts to Respondent to prove that it
does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel
finds in this case that Complainant has established a prima facie case. See G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See 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); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel chooses to examine the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Complainant contends that Respondent is neither commonly
known by the domain name at issue, nor licensed to register domain names using
the Complainant’s mark. Respondent’s
WHOIS information lists Respondent as “Bad Boy Networks” “Dave Carlin”
therefore lacking any information with defining characteristics relating it to
the domain name at issue. Therefore,
pursuant to Policy ¶ 4(c)(ii), the Panel finds that
Respondent lacks all rights and legitimate interests in the disputed domain
name. See Tercent Inc. v. Lee Yi, FA
139720 (Nat. Arb. Forum
In addition, The disputed domain name resolves to a website that features ads that link to Complainant’s competitors, and a search engine that provides links to adult-oriented websites. There is an ad which states “buy this domain” and the statement “This page provided to the domain owner free by Sedo's Domain Parking.” Respondent is not actively using the disputed domain name. There is no evidence on record that Respondent intends to use the disputed domain name. As a result, the Panel finds that Respondent has not made a bona fide offering of good or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the respondent is not commonly known by the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent registered the domain name at issue on March 16, 2003, after
Complainant registered both the domain name <inmate-connections.com> and
filed formed a sole proprietorship with the Secretary of State of the State of
Respondent has registered the domain name at issue but has not actively used the disputed domain name. The Panel finds that such non-use consitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that failure to make an active use of a domain name permits an inference of registration and use in bad faith); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in 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 <inmateconnections.com> domain name be TRANSFERRED to Complainant.
Honorable Paul A. Dorf (Ret.) , Panelist
Dated:
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