SeeMore Putter Company v. shoebotech c/o You Kwon Kim
Claim Number: FA0804001180718
Complainant is SeeMore Putter Company (“Complainant”), represented by Stephen
J. Strauss of Fulwider Patton LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <seemoreputter.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically April 22, 2008; the National Arbitration Forum received a hard copy of the Complaint April 24, 2008.
On April 24, 2008, Direct Information Pvt Ltd d/b/a Publicdomainregistry confirmed by e-mail to the National Arbitration Forum that the <seemoreputter.com> domain name is registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry and that Respondent is the current registrant of the name. Direct Information Pvt Ltd d/b/a Publicdomainregistry verified that Respondent is bound by the Direct Information Pvt Ltd d/b/a Publicdomainregistry registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
1, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 21, 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.
On May 30, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <seemoreputter.com>, is confusingly similar to Complainant’s SEEMORE mark.
2. Respondent has no rights to or legitimate interests in the <seemoreputter.com> domain name.
3. Respondent registered and used the <seemoreputter.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SeeMore Putter Co., manufactures, distributes, markets and sells golf clubs and accessories under its SEEMORE mark. Complainant registered the SEEMORE mark with the United States Patent and Trademark Office (“USPTO”) May 27, 1997 (Reg. No. 2,065,252). Complainant also owns the <seemore.com> domain name.
Respondent registered the <seemoreputter.com> domain name May 25, 2006. The disputed domain name currently resolves to a web page that states it is “Under Construction.”
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 registered the SEEMORE mark with the USPTO, thereby establishing rights to the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The <seemoreputter.com> domain name incorporates the SEEMORE mark in its entirety; it differs from Complainant’s mark only by the addition of the generic term “putter” and the generic top-level domain (“gTLD”) “.com.” Previous panels have concluded that the addition of generic terms, descriptive of a complainant’s business, do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). In addition, all registered domain names are required to have a top-level domain; Respondent’s addition of the gTLD “.com” is not relevant for distinguishing the disputed domain name from the mark. The Panel concludes that the disputed domain name is confusingly similar to Complainant’s SEEMORE mark under Policy ¶ 4(a)(i). See 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 Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant has the initial burden of demonstrating that Respondent lacks all rights and legitimate interests in the <seemoreputter.com> domain name. Complainant has asserted that Respondent has no rights to or legitimate interests in the disputed domain name, and the Panel finds that Complainant has made a prima facie case pursuant to Policy ¶ 4(a)(ii). In G.D. Searle v. Martin Marketing, FA 118277 (Nat. Arb. Forum Oct. 1, 2002), the panel held that “[b]ecause Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent.” Here, the Panel finds that the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests).
The Panel may presume that Respondent has no rights to or legitimate interests in the disputed domain name because Respondent failed to respond to the Complaint. Nevertheless, the Panel will consider all evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c). 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 Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint).
Complainant maintains that it has never given Respondent permission or authorized it to use the SEEMORE mark. The WHOIS information does not suggest that Respondent is commonly known by the <seemoreputter.com> domain name. In Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001), the panel found that the respondent did not have rights in a domain name when the respondent was not known by the mark. Therefore, the Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Respondent is not actively using the disputed domain name, currently, as it resolves to a website that states it is “Under Construction.” The panel in Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) found 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. The Panel concludes that Respondent’s inactive use is evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [inactive use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
The Panel finds that Respondent’s passive holding and failure
to use the <seemoreputter.com>
domain name for an active use evidences registration and use in bad faith under
Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <seemoreputter.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: June 13, 2008.
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