Claim Number: FA0805001195346
Complainant is San Diego Daily Transcript (“Complainant”), represented by Susan
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <sandiegodailytranscript.com>, registered with Nameview, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 27, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 28, 2008.
On June 10, 2008, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <sandiegodailytranscript.com> domain name is registered with Nameview, Inc. and that Respondent is the current registrant of the name. Nameview, Inc. has verified that Respondent is bound by the Nameview, Inc. 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 June 13, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 3, 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@sandiegodailytranscript.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 8, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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 <sandiegodailytranscript.com> domain name is identical to Complainant’s SAN DIEGO DAILY TRANSCRIPT mark.
2. Respondent does not have any rights or legitimate interests in the <sandiegodailytranscript.com> domain name.
3. Respondent registered and used the <sandiegodailytranscript.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has been providing daily weekday newspaper
service since 1886. In 1972, after the
newspaper became the official newspaper of record for the city of
The <sandiegodailytranscript.com> domain name
was registered on January 26, 2005 and currently resolves to a website
providing various links to sponsored third-party links. Many of these links are to competitors who
offer similar goods and services as those offered under Complainant’s
mark. Almost all of the links are
directed at the
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 need not have registered its mark with a
governmental authority in order to establish rights in that mark, so long as it
can establish common law rights pursuant to Policy ¶ 4(a)(i). See British Broad. Corp. v.
Renteria, D2000-0050 (WIPO Mar. 23, 2000)
(noting that the Policy “does not distinguish between registered and
unregistered trademarks and service marks in the context of abusive
registration of domain names” and applying the Policy to “unregistered
trademarks and service marks”); see
also
The SAN DIEGO DAILY TRANSCRIPT mark has been used daily
since at least 1972 providing daily newspaper services, while Complainant has
in total been in operation under the DAILY TRANSCRIPT mark in the
The <sandiegodailytranscript.com> domain name
contains Complainant’s mark in its entirety, omitting the spaces between words,
and including the generic top-level domain (“gTLD”) “.com.” It is well-established that the omission of
spaces and inclusion of a gTLD are irrelevant to a Policy ¶ 4(a)(i)
analysis. Consequently, the Panel finds
the disputed domain name to be identical to Complainant’s mark pursuant to
Policy ¶ 4(a)(i). See Fed’n of Gay Games, Inc. v. Hodgson, D2000-0432 (WIPO June 28,
2000) (finding that the domain name <gaygames.com> is identical to the
complainant's registered trademark GAY GAMES); see also
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no
rights or legitimate interests in the disputed domain name. See VeriSign
Inc. v. VeneSign
Respondent has failed to submit a response to the
Complaint. Therefore, the Panel presumes
that Respondent has no rights or legitimate interests in the <sandiegodailytranscript.com>
domain name, but will nonetheless examine the record in light of the factors
listed 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
Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(“Failure of a respondent to come forward to [contest complainant’s
allegations] is tantamount to admitting the truth of complainant’s assertions
in this regard.”).
The WHOIS information for the <sandiegodailytranscript.com>
domain name identifies Respondent as “SANDIEGODAILYTRANSCRIPT.COM.” However, there is nothing else in the record
that indicates or allows for a presumption that Respondent is or ever was
commonly known by the disputed domain name.
Absent any additional evidence, the Panel finds that Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Respondent’s <sandiegodailytranscript.com>
domain name is identical to Complainant’s mark and resolves to a website
providing various links to sponsored third-party links. Many of these links are to competitors who
offer similar goods and services as those offered under Complainant’s mark. Almost all of the links are directed at the
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The <sandiegodailytranscript.com>
domain name resolves to a variety of third-party links, mostly direct at the
San Diego, California community and many of which offer services in direct
competition with those offered under Complainant’s SAN DIEGO DAILY TRANSCRIPT
mark. The Panel finds this disruptive
use to establish that Respondent registered and is using the disputed domain
name in bad faith pursuant to Policy ¶ 4(b)(iii). See St.
Lawrence Univ. v. Nextnet Tech, FA
881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by
redirecting Internet users seeking information on Complainant’s educational
institution to competing websites, Respondent has engaged in bad faith
registration and use pursuant to Policy ¶
4(b)(iii).”); see also EBAY, Inc. v. MEOdesigns, D2000-1368
(Dec. 15, 2000) (finding that the respondent registered and used the domain
name <eebay.com> in bad faith where the respondent has used the domain
name to promote competing auction sites).
Furthermore, the Panel presumes that Respondent is
commercially benefiting from each Internet user who clicks upon one of these
sponsored links. Consequently, the Panel
finds this to further establish Respondent’s bad faith registration and use of
the disputed domain name pursuant to Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922
(Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the
<arizonashuttle.net> domain name, which contained the complainant’s
ARIZONA SHUTTLE mark, to attract Internet traffic to Respondent’s website
offering competing travel services violated Policy ¶ 4(b)(iv)); see also Associated
Newspapers Ltd. v. Domain Manager, FA
201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the
<mailonsunday.com> domain name is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's
competitors and Respondent presumably commercially benefited from the
misleading domain name by receiving ‘click-through-fees.’”).
The Panel concludes that Complainant has satisfied 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 <sandiegodailytranscript.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 22, 2008
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