Pet Holdings Inc. v. Telecom Tech Corp. c/o Administrator Administrator
Claim Number: FA0812001238241
Complainant is Pet
Holdings Inc. (“Complainant”), represented by Aaron D. Hendelman, of Wilson Sonsini Goodrich & Rosati,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <icanhascheeseburger.com>, registered with Spot Domain LLC.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 17, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 6, 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@icanhascheeseburger.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <icanhascheeseburger.com> domain name is confusingly similar to Complainant’s I CAN HAS CHEEZBURGER? mark.
2. Respondent does not have any rights or legitimate interests in the <icanhascheeseburger.com> domain name.
3. Respondent registered and used the <icanhascheeseburger.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Pet Holdings Inc., operates an online forum
that transmits images and messages among Internet users concerning animals and
humor. Complainant has been using its I
CAN HAS CHEEZBURGER? mark in connection with its offering of these online
services at its <icanhascheezburger.com> domain name since
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 has provided evidence of the registration of the
I CAN HAS CHEEZBURGER? mark with the USPTO and the subsequent contract
assigning Complainant rights in the mark.
The Panel finds this evidence sufficiently establishes Complainant’s
rights in the mark pursuant to Policy ¶ 4(a)(i). See
Microsoft Corp. v. Burkes, FA 652743 (Nat.
Arb. Forum
Furthermore, Complainant has alleged it has acquired common
law rights in its I CAN HAS CHEEZBURGER? mark dating back to
Respondent’s <icanhascheeseburger.com> domain
name replicates Complainant’s I CAN HAS CHEEZBURGER? mark with the following
alterations: the corrected spelling of “cheezburger;” the deletion of the
question mark; and the addition of the generic top-level domain “.com.” The Panel finds these differences are not
sufficient to distinguish Respondent’s disputed domain name from Complainant’s
mark. Thus, the Panel finds Respondent’s
<icanhascheeseburger.com> domain name is confusingly similar to
Complainant’s I CAN HAS CHEEZBURGER? mark pursuant to Policy ¶ 4(a)(i). See
Neuberger Berman Inc. v. Jacobsen,
D2000-0323 (WIPO June 12, 2000) (finding that the respondent’s
<newbergerberman.com> domain name was confusingly similar to the
complainant’s NEUBERGER BERMAN mark despite the slight difference in spelling);
see also Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Nat. Arb.
Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights
or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these
allegations before the burden shifts to Respondent to prove it does have rights
or legitimate interests in the disputed domain name. The Panel finds Complainant has presented an
adequate prima facie case to support
its allegations and Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent
does not possess rights or legitimate interests in the disputed domain
name. The Panel, however, will examine
the record and determine if Respondent has rights or legitimate interests
pursuant to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that
the respondent has no rights or legitimate interests with respect to the
domain, the burden shifts to the respondent to provide “concrete evidence that
it has rights to or legitimate interests in the domain name at issue”); see also Broadcom Corp. v. Ibecom PLC,
FA 361190 (Nat. Arb. Forum
Respondent’s disputed domain name resolves to a website that
displays links for competing animal humor websites. The Panel finds Respondent’s use is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA
960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has
failed to offer any goods or services on its website other than links to a
variety of third-party websites, it was not using a domain name in connection
with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or
a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Skyhawke Techns., LLC v.
Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum
Complainant has alleged Respondent is not commonly known by the <icanhascheeseburger.com> domain name. The WHOIS information lists Respondent as “Telecom Tech Corp.” and the record does not indicate Respondent has ever been commonly known by the disputed domain name. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there is no evidence in the record indicating that the respondent is commonly known by the disputed domain name); see also 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).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain name to display links to third-party websites that compete with Complainant’s animal humor business. The Panel finds Respondent’s actions constitute disruption of Complainant’s business, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also 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).”).
Respondent presumably receives compensation in the form of click-through fees for its use of the confusingly similar disputed domain name. The Panel finds Respondent’s use is an attempt to profit from the goodwill Complainant has established in its I CAN HAS CHEEZBURGER? mark. The Panel finds this is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
The Panel finds 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 <icanhascheeseburger.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: January 23, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum