Glen Raven, Inc. v. Robert Arndt 111
Claim Number: FA0901001240646
Complainant is Glen
Raven, Inc. (“Complainant”), represented by Christopher Kelly, of Wiley Rein LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <sunbrella.mobi>, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 3, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <sunbrella.mobi> domain name is identical to Complainant’s SUNBRELLA mark.
2. Respondent does not have any rights or legitimate interests in the <sunbrella.mobi> domain name.
3. Respondent registered and used the <sunbrella.mobi> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Glen Raven, Inc., holds several trademark registrations
for the SUNBRELLA mark with the United States Patent and Trademark Office
(“USPTO”) (i.e.
Reg. No. 709,110 issued
Respondent registered the <sunbrella.mobi>
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
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’s registration of the SUNBRELLA mark with the
USPTO establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Intel Corp. v.
Macare, FA 660685 (Nat. Arb. Forum
The <sunbrella.mobi>
domain name includes Complainant’s SUNBRELLA mark in its entirety and adds the generic
top-level domain (gTLD) “.mobi.” The
inclusion of a gTLD in a domain name is irrelevant to an analysis under Policy
¶ 4(a)(i).
Therefore, the Panel finds that the <sunbrella.mobi> domain
name is identical to Complainant’s SUNBRELLA mark pursuant to Policy ¶ 4(a)(i). See Starkey
v. Bradley, FA 874575 (Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. If the Panel finds
that Complainant’s allegations establish such a prima facie case, the
burden shifts to Respondent to show that it does indeed have rights or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). Since no response was
submitted in this case, the Panel may presume that Respondent has no rights or
legitimate interests in the disputed domain name. The Panel finds that Complainant’s
allegations are sufficient to establish a prima
facie case that Respondent has no rights or legitimate interests in the <sunbrella.mobi>
domain name pursuant to Policy ¶ 4(a)(ii). However,
the Panel will still examine the record in consideration of the factors listed
in Policy ¶ 4(c). See Domtar, Inc. v.
Theriault.,
FA 1089426 (Nat. Arb. Forum
There is no evidence to indicate to the Panel that
Respondent is commonly known by the <sunbrella.mobi> domain
name. The WHOIS information identifies Respondent
as “Robert Arndt 111.” Respondent has
not established any rights or legitimate interests under Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
Respondent is using the <sunbrella.mobi> domain
name, which is identical to Complainant’s SUNBRELLA mark, to advertise unrelated
third-party websites. The Panel infers
that Respondent receives click-through fees when Internet users attempt to
access the advertised sites. The Panel
finds that this is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a noncommercial or fair use of the disputed domain
name pursuant to Policy ¶ 4(c)(iii). See Fox News Network, LLC v. Reid,
D2002-1085 (WIPO
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel infers
that Respondent receives click-through fees for diverting Internet users to
third-party websites. Because
Respondent’s domain name is identical to Complainant’s SUNBRELLA mark, Internet users accessing Respondent’s
disputed domain name may become confused as to Complainant’s affiliation with
the disputed domain name and resulting website.
Respondent is attempting to profit from this confusion. Thus, Respondent’s use of the <sunbrella.mobi>
domain name constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA
680624 (Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sunbrella.mobi> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 17, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum