Tours, Inc. v. Whois Service c/o
Claim Number: FA0807001217324
Complainant is Romantic
Tours, Inc. (“Complainant”), represented by Joseph J. Weissman, of JOHNSON, POPE, BOKOR, RUPPEL & BURNS,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hotrussianbrides.org>, registered with Intercosmos Media Group 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 24, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 28, 2008.
On July 25, 2008, Intercosmos Media Group Inc. confirmed by e-mail to the National Arbitration Forum that the <hotrussianbrides.org> domain name is registered with Intercosmos Media Group Inc. and that Respondent is the current registrant of the name. Intercosmos Media Group Inc. has verified that Respondent is bound by the Intercosmos Media Group 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 August 5, 2008, a Notification of
Complaint and Commencement of Administrative Proceeding (the "Commencement
Notification"), setting a deadline of August 25, 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 August 29, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is a
Complainant also owns and operates the <hotrussianbrides.com> domain name.
Respondent has not been licensed to use the HOT RUSSIAN BRIDES mark.
Respondent registered the disputed domain name on February 2, 2006.
The disputed domain name currently resolves to a website that hosts links to third-party vendors that operate in direct competition with the business of Complainant.
Respondent has been the respondent in other UDRP decisions wherein the disputed domain names were transferred from Respondent to the respective complainants.
Respondent’s <hotrussianbrides.org> domain name is identical to Complainant’s HOT RUSSIAN BRIDES mark.
Respondent does not have any rights or legitimate interests in the domain name <hotrussianbrides.org>.
Respondent registered and uses the <hotrussianbrides.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
While Complainant’s trademark was registered with the USPTO after
Respondent registered the disputed domain name, the relevant date for
establishing rights in a registered mark is the filing date. See Hershey
Respondent’s <hotrussianbrides.org> domain name
incorporates Complainant’s entire HOT RUSSIAN BRIDES mark, while omitting the
spaces between its elements and adding the generic top-level domain
“.org.” Neither alteration is relevant
under Policy ¶ 4(a)(i). See
Therefore, the Panel finds that the disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights to and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Under the Policy, it is incumbent upon Complainant to make out a prima facie showing that Respondent lacks rights and interests in its domain name, whereupon it falls to Respondent to come forward with evidence to the contrary. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001):
Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.
See also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where a complainant has asserted that a respondent has no rights or legitimate interests with respect to a domain name, it is incumbent on that respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant has asserted a sufficient prima facie case supporting its allegation that Respondent has no rights or interests in the disputed domain name. Respondent, for its part, has failed to respond to the Complaint. In these circumstances, we are entitled to conclude that Respondent has no rights or interests in the contested domain cognizable under the Policy. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002):
[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.
See also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence).
Despite Respondent’s failure to respond to the Complaint, we will examine the evidence of record to determine if there is any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name under Policy ¶ 4(c).
We begin by observing that Complainant alleges, and Respondent does not deny, that Respondent has not been licensed by it to use the HOT RUSSIAN BRIDES mark. Moreover, the pertinent WHOIS information lists Respondent as “Whois Service c/o Belize Domain WHOIS Service Lt.” We therefore conclude that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003): “Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that a respondent does not have rights in a domain name where that respondent is not known by the mark).
We also note that there is no dispute as to Complainant’s allegation that the disputed domain name resolves to a website that hosts sponsored links and advertisements for Complainant’s business competitors. We may presume that Respondent receives commercial benefit from this activity in the form of “click-through” fees. Such use of the disputed domain does not constitute either 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 TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s diversionary use of a complainant’s marks to send Internet users to a website which displayed links to that complainant’s competitors, was not a bona fide offering of goods or services); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website was 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)).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
The record reflects that Respondent has been a respondent in
other UDRP proceedings in which disputed domain names were transferred from
Respondent to complainants. See Frederica Furniture A/S v.
We also conclude from the undisputed evidence before us that
Respondent has, for financial gain, intentionally attempted to create a
likelihood of confusion as to Complainant’s possible affiliation with or
endorsement of the disputed domain name and corresponding website through the
use of the disputed domain name.
Respondent has therefore engaged in bad faith registration and use of
its domain name under Policy ¶ 4(b)(iv). See Asbury
Auto. Group, Inc. v.
The Panel infers that Respondent receives click-through fees for diverting Internet users to a competing website. Because Respondent’s domain name is identical to Complainant’s … mark, Internet users accessing Respondent’s domain name may become confused as to Complainant’s affiliation with the resulting website. Thus, Respondent’s use of the … domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <hotrussianbrides.org> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 12, 2008
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