Claim Number: FA0804001177495
PARTIES
Complainant is American College of Cardiology
Foundation (“Complainant”),
represented by Lisa A. Dunner, of Dunner Law,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cardiosource.org>, registered with TierraNet Inc.
d/b/a DomainDiscover.
PANEL
The undersigned certifies that he has acted independently and
impartially and to the best of his knowledge has no known conflict in serving
as Panelist in this proceeding.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 11, 2008; the
National Arbitration Forum received a hard copy of the Complaint on April 14, 2008.
On April 23, 2008, TierraNet Inc. d/b/a DomainDiscover confirmed by
e-mail to the National Arbitration Forum that the <cardiosource.org>
domain name is registered with TierraNet Inc. d/b/a
DomainDiscover and that the Respondent is the current registrant of the
name. TierraNet
Inc. d/b/a DomainDiscover has verified that Respondent is bound by the TierraNet Inc. d/b/a DomainDiscover
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 April 28, 2008, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of May 19, 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@cardiosource.org by e-mail.
A Response was received by e-mail on May
21, 2008. The Response was deemed
deficient pursuant to Supplemental Rule 5 because a hard copy was not received
prior to the Response deadline. However,
the Panel has decided to consider Respondent’s submission
notwithstanding that it was filed two days late. See Telstra Corp. v. Chu,
D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the
lateness of the response is solely in the discretion of the panelist). The Panel decides to accept the Response. See Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO
June 22, 2000) (finding that a panel may consider a response which was one day
late, and received before a panelist was appointed and any consideration made);
see also Gaiam, Inc. v. Nielsen, FA 112469 (Nat. Arb. Forum July 2,
2002) (“In the interest of having claims decided on the merits and not by
default and because Complainant has not been prejudiced in the presentation of
its case by the late submission, Respondent’s opposition documents are accepted
as timely.”).
On May 28, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The trademark CARDIOSOURCE, is registered under a valid and subsisting registration with the United States Patent and Trademark Office. Registration issued on January 13, 2004 to Elsevier Inc., Complainant’s business partner, and was assigned nunc pro tunc to Complainant on April 28, 2005.
The CARDIOSOURCE mark has been adopted and continually used in commerce by Complainant and its predecessors in interest since at least as early as September 1997 in connection with “computer services, namely providing computer databases featuring journals, reference materials, news and other information in the fields of medicine and healthcare via a global computer network.”
Complainant is the
educational foundation arm of the
As the leader in its field, Complainant prominently uses the well-known CARDIOSOURCE mark in worldwide online and print advertising to its international membership. Under the CARDIOSOURCE mark, Complainant provides health information and educational products geared towards the field of cardiology.
Respondent’s registered domain is identical
or confusingly similar to Complainant’s mark CARDIOSOURCE. The addition of “www” and “.org” to
Respondent’s domain is purely informational and does nothing to distinguish it
from Complainant’s mark. Any
contemplated use of the domain is likely to misleadingly direct web users
trying to find and use Complainant’s well-known CARDIOSOURCE portal on the
internet.
Respondent’s use of the domain and Complainant’s mark for commercial purposes by linking and luring customers to the site of his place of employment, where he offers and provides fee-based medical services, is not a legitimate or fair use of the domain. Respondent has never used the domain in connection with a bona fide offering of goods or services.
Respondent, as a paying member of Complainant during the years 1998 to 2006, registered for at least one of Complainant’s conferences and purchased a variety of Complainant’s educational products. As a member, Respondent was exposed to and likely utilized Complainant’s CARDIOSOURCE portal and services. Therefore, the domain was registered in and is being used in bad faith.
B. Respondent
Respondent has used his time for many years to build up Cardiolink and
obtaining domains that will help Cardiolink in the future. His home page states “Cardiosource Consultants”
and that is what his business is. It
will be designed for people to access the website that will offer medical
services. Respondent only obtained
domain names that would benefit his company for future use and is open to discussion
with anyone that would like to obtain his domain rights.
FINDINGS
(1) the domain name registered by Respondent is identical or
confusingly similar to a trademark or service mark in which Complainant has
rights;
(2) the 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.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or
confusingly similar to a trademark or service mark in which the Complainant has
rights;
(2) the 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.
The Panel finds that Complainant has established rights in the mark
through registration with the USPTO. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb.
Forum Mar. 27, 2007) (finding that the complainant’s federal trademark
registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to
establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Metro. Life Ins. Co. v. Bonds, FA
873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a
trademark registration adequately demonstrates a complainant’s rights in a mark
under Policy ¶ 4(a)(i)). The Panel also finds that Complainant has
established rights in the mark through common law.
The Panel finds that the disputed domain name is identical to
Complainant’s CARDIOSOURCE mark. The <cardiosource.org> domain name contains the mark in its entirety, without the space, and
with the addition of the generic top-level domain “.org.”
The Panel finds that there is no evidence in the record or in the WHOIS registration information that Respondent is commonly known by the disputed domain name. Therefore, Respondent is not commonly known by the <cardiosource.org> domain name under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001).
Respondent’s 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 Bank of Am.
Corp. v. Nw. Free Cmty. Access,
FA 180704 (Nat. Arb.
Forum Sept. 30, 2003).
Respondent’s disputed domain name is likely to cause confusion as to the source,
sponsorship,
affiliation, or endorsement of Respondent’s website under Policy ¶
4(b)(iv). The Panel finds bad faith
registration and use. Bank of Am.
Corp. v.
DECISION
The Complainant having established all three elements required under
the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cardiosource.org> domain name be TRANSFERRED
from Respondent to Complainant.
Dated: June 11, 2008
National
Arbitration Forum