SPTC, Inc. and Sotheby's v. Speedplexer c/o
Claim Number: FA0808001221152
Complainant is SPTC, Inc. and Sotheby's (“Complainant”), represented by Sujata
Chaudhri, of Cowan, Liebowitz & Latman, P.C., New
York, USA. Respondent is Speedplexer c/o Chad Moston (“Respondent”),
The domain name at issue is <sothebydiamonds.com>, registered with Spot Domain LLC d/b/a Domainsite.com.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 21, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 10, 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 firstname.lastname@example.org 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 <sothebydiamonds.com> domain name is confusingly similar to Complainant’s SOTHEBY’S DIAMONDS mark.
2. Respondent does not have any rights or legitimate interests in the <sothebydiamonds.com> domain name.
3. Respondent registered and used the <sothebydiamonds.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
SPTC, Inc. and Sotheby’s (collectively “Complainant”), have
been engaged in the auction industry since 1744, and have developed a
reputation as a premier auction house for the sale of jewelry, fine art, and
other collectibles. Complainant
developed its “Sotheby’s Diamonds” venture in 2005, which showcases jewelry and
gems in the
Respondent, Speedplexer c/o Chad Moston, registered the disputed <sothebydiamonds.com> domain name on May 11, 2008, and is using the disputed domain name to resolve to a website that features advertisements for third parties, some of whom compete directly with Complainant’s jewelry services.
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 has submitted evidence of its trademark
registrations with the OHIM for its SOTHEBY’S DIAMONDS mark. The Panel therefore finds that Complainant
has sufficient rights in the mark under Policy ¶ 4(a)(i).
domain name includes Complainant’s mark, while omitting only the apostrophe and
the last “s” in SOTHEBY’S. Neither of
these alterations carries any meaningful distinction. See Chi-Chi’s, Inc. v. Rest. Commentary, D2000-0321 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and
legitimate interests in the disputed domain name.
Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent
receives the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its
burden, and therefore Respondent must demonstrate its rights or legitimate
interests under Policy ¶ 4(c). See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
There is no evidence in the record, including the WHOIS
information, to conclude that Respondent is commonly known by the disputed
domain name. Moreover, Complainant
contends that Respondent is not a licensee of Complainant, and that Respondent
is not authorized to register or use the disputed domain name or the SOTHEBY’S
DIAMONDS mark. Therefore, the Panel finds
that Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum
July 7, 2006) (concluding that the respondent was not commonly known by the
disputed domain names where the WHOIS information, as well as all other
information in the record, gave no indication that the respondent was commonly
known by the disputed domain names, and the complainant had not authorized the
respondent to register a domain name containing its registered mark); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum
Respondent’s disputed domain name resolves to a website that features third-party advertisements, some of which lead to Complainant’s direct competitors. The Panel infers that Respondent receives click-through fees through this activity. Therefore, the Panel finds that Respondent has failed to create 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 Bank of Am. Corp. v. Northwest Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); 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 at a confusingly similar domain name 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 finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iii) by
disrupting Complainant’s business through the provision of competitive
third-party advertisements on the resolving website. See
The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv) by intentionally creating a likelihood of confusion for commercial gain as to Complainant’s affiliation with Respondent’s confusingly similar disputed domain name and corresponding website. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also University of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
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 <sothebydiamonds.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 30, 2008
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