Wendy Ida v. Farid Azam
Claim Number: FA0901001240643
Complainant is Wendy Ida (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wendyida.com>, registered with Register.com, 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 December 31, 2008; the National Arbitration Forum received a hard copy of the Complaint on December 31, 2008.
On January 5, 2009, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <wendyida.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 January
15, 2009, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
February 4, 2009
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@wendyida.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 13, 2009, 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 <wendyida.com> domain name is identical to Complainant’s WENDY IDA mark.
2. Respondent does not have any rights or legitimate interests in the <wendyida.com> domain name.
3. Respondent registered and used the <wendyida.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Wendy Ida, owns and operates Wendy Ida Fitness. Complainant registered and has owned the disputed domain name since 2000. Complainant hired a third party to develop a resolving website for the disputed domain name, but Complainant recently lost access to her account and domain name.
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 demonstrate evidence of a trademark
registration in order to have sufficient rights in a mark under Policy ¶ 4(a)(i) provided Complainant can demonstrate sufficient common
law rights through secondary meaning. See Artistic
Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8,
2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration
if a complainant can establish common law rights in its mark); see also
The Panel notes that a complainant’s burden to demonstrate
rights in a mark may be a low threshold in certain limited situations. See Desktop Media, Inc. v. Desktop Media, Inc., FA 96815 (Nat. Arb.
Forum Apr. 12, 2001) (“[F]or the limited purposes of the domain name dispute
resolution process[,] a low threshold of proof is all that is required to meet
the first element ….”); see also Goepfert v.
The disputed <wendyida.com> domain name contains Complainant’s WENDY IDA mark while removing the space and adding the generic top-level domain “.com.” The Panel finds that since neither alteration is relevant, the disputed domain name is therefore identical to Complainant’s mark under Policy ¶ 4(a)(i). See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”); see also Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name <wembleystadium.net> is identical to the WEMBLEY STADIUM mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
There is no evidence within the record to conclude that
Respondent is commonly known by the disputed domain name. The WHOIS information lists Respondent as
“Farid Azam.” Therefore, the Panel finds
that Respondent is not commonly known by the disputed domain name under Policy
¶ 4(c)(ii). See
M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3,
2006) (finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the
WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA
715089
(Nat. Arb. Forum July 17, 2006) (concluding that the
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the WHOIS information,
suggesting that the respondent was commonly known by the disputed domain name).
The Panel notes that this is a unique set of
circumstances. While typically the Panel
requires evidence of use of the disputed domain name, this case deals more with
the access rights to the disputed domain name itself. Complainant has owned and operated the
disputed domain name until either Complainant’s hired web developer or a
third-party fraudulently transferred the disputed domain name access rights
away from Complainant. In either regard,
the Panel finds that in this instance, Respondent lacks rights and legitimate
interests in the disputed domain name under Policy ¶ 4(a)(ii). See Savino Del Bene Inc. v. Gennari,
D2000-1133 (WIPO Dec. 12, 2000) (finding that a former employee does not
acquire rights or legitimate interests in a domain name identical to the former
employer's trademark); see also Am. Anti-Vivisection Soc’y v. “Infa dot Net”
Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that the
complainant’s prior registration of the same domain name is a factor in
considering the respondent’s rights or legitimate interests in the domain
name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Additional factors can also be used to support findings of bad faith beyond those enumerated under Policy ¶ 4(b). See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the “totality of circumstances”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”).
Complainant’s access to the disputed domain name has been
fraudulently taken away. The Panel again
notes that these very unique facts lend to a finding that Respondent engaged in
bad faith registration and use under Policy ¶ 4(a)(iii). See avino Del Bene Inc. v. Gennari,
D2000-1133 (WIPO Dec. 12, 2000) ("Respondent's registration of the company
name of his former employer as a Domain Name is an act of bad faith."); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000)
(finding bad faith where the respondent failed to provide any evidence to
controvert the complainant's allegation that it registered the domain name in
bad faith and where any future use of the domain name would do nothing but
cause confusion with the complainant’s mark, except in a few limited
noncommercial or fair use situations, which were not present).
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 <wendyida.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: February 27, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum