Claim Number: FA0902001245894
Complainant is Hoover's,
Inc. (“Complainant”), represented by Caroline
The domain name at issue is <hoovers.asia>, registered with Mesh Digital Limited.
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.
Complainant submitted a Complaint
to the National Arbitration Forum electronically on
On February 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 9, 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 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:
<hoovers.asia> domain name is identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <hoovers.asia> domain name.
3. Respondent registered and used the <hoovers.asia> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent registered the disputed <hoovers.asia>
domain name on
During the course of communications between the parties, Respondent requested that Complainant purchase the disputed domain name for $42,500.
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 established sufficient rights in the
domain name contains Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant has established a prima facie case supporting its allegations, as it has in this case, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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”).
Respondent has used the disputed domain name to resolve to a
pay-per-click website, as well as alleged business websites in fields unrelated
to Complainant. Because Respondent has
not set forth sufficient evidence to corroborate any of these apparent businesses,
the Panel is inclined to find, and does so find, that Respondent has not made
any demonstrable preparations to use the disputed domain name in connection
with a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair
use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Wal-Mart Stores, Inc. v.
Walmarket Canada, D2000-0150 (WIPO May 2, 2000) (finding that the
respondent had no rights or legitimate interests where he decided to develop
the website for the sale of wall products after receiving the complainant’s
“cease and desist” notice); see also
Household Int’l, Inc. v. Cyntom Enters., FA 95784 (Nat. Arb. Forum
Moreover, the presence of a parked website further evidences a lack of a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
There is no evidence within the record to demonstrate that
Respondent is commonly known by the disputed
domain name. Moreover, the WHOIS
domain name registration information offers the same conclusion. Thus, the Panel finds that Respondent lacks
rights and legitimate interests in the disputed domain name pursuant to Policy
¶ 4(c)(ii). See Gallup, Inc. v.
Amish Country Store, FA 96209 (Nat. Arb. Forum
Finally, Respondent’s offer to sell the disputed domain name for an amount well in-excess of its acquisition costs demonstrates Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“An attempt by a respondent to sell a domain name to a complainant who owns a trademark with which the domain name is confusingly similar for an amount in excess of out-of-pocket costs has been held to demonstrate a lack of legitimate rights or interests.”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s $42,500 request for the disputed domain name demonstrates Respondent’s primary intent to sell the disputed domain name. This evidences Respondent’s bad faith registration and use under Policy ¶ 4(b)(i). See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)); see also Campmor, Inc. v. GearPro.com, FA 197972 (Nat. Arb. Forum Nov. 5, 2003) (“Respondent registered the disputed domain name and offered to sell it to Complainant for $10,600. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”).
Respondent’s actions to utilize a
resolving website with purported businesses of highly-variant industries, as
well as a parked website, demonstrate an intent to trade off of the goodwill
surrounding Complainant’s mark. The
Panel finds that this demonstrates Respondent’s bad faith registration
and use under Policy ¶ 4(b)(iv). See
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 <hoovers.asia> domain name be TRANSFERRED from Respondent to Complainant.
Dated: March 30, 2009
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