Naim Interactive Inc. v. Jenks Presley
Claim Number: FA0805001195371
Complainant is Naim Interactive Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <go2trafficschool.com>, registered with Godaddy.com, Inc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
10, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 30, 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 <go2trafficschool.com> domain name is confusingly similar to Complainant’s GOTOTRAFFICSCHOOL.COM mark.
2. Respondent does not have any rights or legitimate interests in the <go2trafficschool.com> domain name.
3. Respondent registered and used the <go2trafficschool.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Naim Interactive Inc., provides online traffic
school courses through the <gototrafficschool.com> domain name. Complainant is one of the largest companies
of its kind with millions of dollars in revenue. Complainant began using the GOTOTRAFFICSCHOOL.COM
mark in connection with its business on
Respondent registered the disputed 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 alleges common law rights in the
GOTOTRAFFICSCHOOL.COM mark. The Policy
does not require a complainant to hold a trademark registration in a mark to
establish rights under Policy ¶ 4(a)(i). See
SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000)
(finding that the Rules do not require that the complainant's trademark or
service mark be registered by a government authority or agency for such rights
to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO
Complainant alleges that the mark has been used continuously in commerce since 2000. The website that Complainant’s mark directs to has had over 1,000,000 visitors from sixteen states. The Panel finds that the evidence meets the minimum threshold of proof of secondary meaning under Policy ¶ 4(a)(i). See BroadcastAmerica.com, Inc. v. Quo, DTV2000-0001 (WIPO Oct. 4, 2000) (finding that the complainant has common law rights in BROADCASTAMERICA.COM, given extensive use of that mark to identify the complainant as the source of broadcast services over the Internet, and evidence that there is wide recognition with the BROADCASTAMERICA.COM mark among Internet users as to the source of broadcast services); see also Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (finding that the complainant had provided evidence that it had valuable goodwill in the <minorleaguebaseball.com> domain name, establishing common law rights in the MINOR LEAGUE BASEBALL mark).
Respondent’s disputed domain name contains Complainant’s
entire mark in meaning and in essence. The only change made was to change the word
“to” into the numerical equivalent “2.”
Complainant contends that this change does not sufficiently
differentiate the disputed domain name from Complainant’s mark. The Panel finds that Respondent’s disputed
domain name is confusingly similar to the GOTOTRAFFICSCHOOL.COM mark in which
Complainant has rights pursuant Policy ¶ 4(a)(i). See Am. Online Inc. v. Chinese ICQ Network,
D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in
the domain name <4icq.com> does nothing to deflect the impact on the
viewer of the mark ICQ and is therefore confusingly similar); see also Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent has neither rights nor
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Complainant
has the initial burden of showing that Respondent does not have rights or
legitimate interests in the disputed domain name. Once Complainant has made a prima facie case showing that Respondent
lacks rights and legitimate interests, the burden shifts to Respondent to show
that it does have rights or legitimate interests in the <go2trafficschool.com>
domain name. See Compagnie Generale des
Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Complainant asserts that Respondent has never been
authorized to use the GOTOTRAFFICSCHOOL.COM mark, and that Respondent is not
and has never been commonly known by the disputed domain name. Further, the WHOIS information does not
indicate that Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not
commonly known by the <go2trafficschool.com> domain name pursuant
to Policy ¶ 4(c)(ii).
See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum
Respondent is using the <go2trafficschool.com> domain name to advertise links to third-party competitors. The Panel finds that such 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 DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
The Panel finds that Complainant has met the initial burden of showing that Respondent lacks rights and legitimate interests, and therefore has made a prima facie case under Policy ¶ 4(a)(ii). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the <go2trafficschool.com>
domain name to commercially gain by advertising links to competing services
constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Complainant contends that Respondent is using the <go2trafficschool.com> domain name for commercial gain by advertising links to competing services, and benefiting from the likely confusion between Complainant’s mark and the disputed domain name. The Panel finds that the similarity between the disputed domain name and the GOTOTRAFFICSCHOOL.COM mark are likely to create confusion as to Complainant’s source, sponsorship, affiliation, or endorsement of the website that resolves from the disputed domain name which constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <go2trafficschool.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: July 22, 2008
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