Claim Number: FA0902001246914
Complainant is Crystal
of America, Inc. (“Complainant”), represented by Richard G. Tashjian, of
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <buyriedel.com>, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 18, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 10, 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@buyriedel.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 <buyriedel.com> domain name is confusingly similar to Complainant’s RIEDEL mark.
2. Respondent does not have any rights or legitimate interests in the <buyriedel.com> domain name.
3. Respondent registered and used the <buyriedel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Crystal of America, Inc., is the licensee of the RIEDEL mark, which is owned by Grund & Mobil Verwaltungs AG Aktiengesellschaft through a registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,216,012 issued Jan. 5, 1999). The mark is used in connection with drinking glasses and glassware.
Respondent registered the disputed <buyriedel.com>
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.
The Panel finds that Complainant’s license of the RIEDEL mark,
which was registered with the USPTO prior to Respondent’s registration of the
disputed domain name demonstrates Complainant’s rights in the mark under Policy
¶ 4(a)(i). See Stevenson v. Crossley, FA 1028240 (Nat. Arb. Forum Aug. 22,
2007) (“Per the annexed U.S.P.T.O. certificates of registration, assignments
and license agreement executed on May 30, 1997, Complainants have shown that
they have rights in the MOLD-IN GRAPHIC/MOLD-IN GRAPHICS trademarks, whether as
trademark holder, or as a licensee. The Panel concludes that Complainants have
established rights to the MOLD-IN GRAPHIC SYSTEMS mark pursuant to Policy ¶
4(a)(i).”); see also remithome Corp v. Pupalla, FA 1124302
(Nat. Arb. Forum
Respondent’s <buyriedel.com>
domain name contains Complainant’s entire RIEDEL mark along with the generic
word “buy” and the generic top-level domain “.com.” The Panel finds that neither addition
sufficiently distinguishes the disputed domain name from Complainant’s mark,
and that therefore the disputed domain name is confusingly similar to
Complainant’s mark under Policy ¶ 4(a)(i).
See Jerry Damson, Inc. v.
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. Because Complainant has set forth a sufficient prima facie case, Respondent bears the burden of demonstrating that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
There is no evidence within the record by which the Panel
can find that Respondent is commonly known by the disputed domain name. Complainant has asserted that Respondent
lacks license or authorization to use Complainant’s mark, and Respondent has
not countered with any evidence whatsoever due to its lack of a response. Moreover, the WHOIS information lists
Respondent as “Market Research.” The
Panel finds that Respondent lacks rights and legitimate interests 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 Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
Respondent’s disputed domain name has resolved to websites
that either directly sell Complainant’s products in unauthorized form, or use
click-through advertising to link to third-party websites that sell
Complainant’s products in an unauthorized manner. In either regard, Respondent’s clear
commercial gain demonstrates that Respondent has not engaged in 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
Pitney Bowes Inc. v. Ostanik, D2000-1611 (WIPO Jan. 24, 2001) (finding no
rights or legitimate interests in the <pitneybowe.com> domain name where
the respondent purports to resell original Pitney Bowes equipment on its
website, as well as goods of other competitors of the complainant); see also Nat’l Collegiate Athletic Ass’n v.
Halpern, D2000-0700 (WIPO Dec. 10, 2000) (finding that domain names used to
sell the complainant’s goods without the complainant’s authority, as well as
others’ goods, is not a bona fide use); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor,
FA 95396 (Nat. Arb. Forum
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 advancement of unauthorized sales of Complainant’s
products either directly or through third-party advertisements on the resolving
websites. See EBAY, Inc. v. MEOdesigns, D2000-1368
(WIPO
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
websites. 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
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 <buyriedel.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: March 30, 2009
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