Coast Dental Services Inc. v. Jeff Sundermeyer
Claim Number: FA0805001189805
Complainant is Coast Dental Services Inc. (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coastdental.org>, registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
16, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 5, 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 <coastdental.org> domain name is identical to Complainant’s COAST DENTAL mark.
2. Respondent does not have any rights or legitimate interests in the <coastdental.org> domain name.
3. Respondent registered and used the <coastdental.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Coast Dental
Services Inc., is in the business of operating dental offices and providing
dental services in the
Respondent, Jeff Sundermeyer,
registered the <coastdental.org> 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.
The Panel finds that Complainant has established sufficient rights in its COAST DENTAL mark through its registration with the USPTO 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 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.”).
domain name incorporates Complainant’s entire COAST DENTAL mark omitting the
space between the first and second terms, and adding the generic top-level
domain “.org,” both of which do not
create distinctiveness under Policy ¶ 4(a)(i).
See Bond & Co. Jewelers, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must initially establish a prima facie case that Respondent lacks rights and legitimate
interests in the disputed domain name, thereby shifting the burden of proof to
Respondent. In American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
The Panel finds that Respondent is using the <coastdental.org> domain name to operate a complaint site critical of Complainant, which does not 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 Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (holding that the respondent’s showing that it “has a right to free speech and a legitimate interest in criticizing the activities of organizations like the Complainant . . . is a very different thing from having a right or legitimate interest in respect of [a domain name that is identical to Complainant’s mark]”); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (because the respondent's sole purpose in selecting the domain names was to cause confusion with the complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use).
Additionally, nothing in the WHOIS registration information
or uncontested record demonstrates that Respondent is commonly known by the <coastdental.org> domain name. In RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb.
The Panel finds that Policy ¶ 4(a)(ii) has been met.
Panel finds that Respondent offered to sell the <coastdental.org> domain name to
Complainant. In Bank of America Corp. v. Northwest Free Community Access, FA 180704 (Nat. Arb. Forum
Moreover, the Panel finds Respondent’s use of the identical <coastdental.org> domain name to resolve to a website critical about Complainant is disruptive to Complainant’s business. The Panel finds such use constitutes evidence of bad faith under Policy ¶ 4(a)(iii). See Northwest Airlines, Inc. v. Jorgenson, FA 96586 (Nat. Arb. Forum Mar. 28, 2001) (“Respondent registered the domain name for the purpose of bringing Internet users desiring to learn more about Complainant to Respondent's site for the intended purpose of publishing contrary and critical views of Complainant thus disrupting the business of Complainant. Registering a domain name identical with the mark of Complainant, for this purpose, is bad faith.”); see also TM Acquisition Corp. v. S.E.A. Domains, FA 156800 (Nat. Arb. Forum June 12, 2003) (finding the respondent's use of the complainant's mark to redirect Internet users to a website dedicated to criticizing the complainant was evidence that the respondent’s domain names were registered and used 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 <coastdental.org> domain name be TRANSFERRED from Respondent to Complainant.
Dated: June 25, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum