national
arbitration forum
DECISION
Centrum Force, LLC v. Diogenis Mavridis
Claim
Number: FA0902001250002
PARTIES
Complainant is Centrum Force, LLC (“Complainant”), represented by Craig
A. Redlinger, of Young Basile, Michigan, USA. Respondent is Diogenis Mavridis (“Respondent”), Georgia,
USA.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <centrumforce.com>, <centrumforce.org>,
<centrumforce.net>, <centrumforce.info>, <centrumforce.biz>,
<centrimaxx.com>, <centrimaxx.org>, <centrimaxx.net>,
<centrimaxx.info>, <centrimaxx.biz>, <centri-maxx.com>,
<centri-maxx.org>, <centri-maxx.net>, <centri-maxx.info>,
and <centri-maxx.biz>, registered with Godaddy.com, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to
the National Arbitration Forum electronically on February 27, 2009;
the National Arbitration Forum received a hard copy of the Complaint on March 2, 2009.
On March 3, 2009,
Godaddy.com, Inc. confirmed by e-mail to
the National Arbitration Forum that the <centrumforce.com>, <centrumforce.org>,
<centrumforce.net>, <centrumforce.info>, <centrumforce.biz>,
<centrimaxx.com>, <centrimaxx.org>, <centrimaxx.net>,
<centrimaxx.info>, <centrimaxx.biz>, <centri-maxx.com>,
<centri-maxx.org>, <centri-maxx.net>, <centri-maxx.info>,
and <centri-maxx.biz> domain names are registered with Godaddy.com, Inc. and that Respondent is the
current registrant of the names. Godaddy.com, Inc. has verified that Respondent
is bound by the Godaddy.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 March 11, 2009,
a Notification of Complaint and Commencement of Administrative Proceeding (the
"Commencement Notification"), setting a deadline of March 31, 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@centrumforce.com, postmaster@centrumforce.org, postmaster@centrumforce.net, postmaster@centrumforce.info, postmaster@centrumforce.biz, postmaster@centrimaxx.com, postmaster@centrimaxx.org, postmaster@centrimaxx.net, postmaster@centrimaxx.info, postmaster@centrimaxx.biz, postmaster@centri-maxx.com, postmaster@centri-maxx.org, postmaster@centri-maxx.net, postmaster@centri-maxx.info, and postmaster@centri-maxx.biz by e-mail.
Having received no response from
Respondent, the National Arbitration Forum transmitted to the parties a
Notification of Respondent Default.
On April 7, 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.
RELIEF SOUGHT
Complainant requests that the domain
names be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A.
Complainant makes the following assertions:
1. Respondent’s
<centrumforce.com>, <centrumforce.org>,
<centrumforce.net>, <centrumforce.info>, and <centrumforce.biz>
domain names are identical to Complainant’s CENTRUM FORCE mark.
Respondent’s <centrimaxx.com>, <centrimaxx.org>,
<centrimaxx.net>, <centrimaxx.info>, and <centrimaxx.biz>,
domain names are confusingly similar to Complainant’s CENTRI-MAXX mark.
Respondent’s <centri-maxx.com>, <centri-maxx.org>,
<centri-maxx.net>, <centri-maxx.info>, and <centri-maxx.biz>
domain names are identical to Complainant’s CENTRI-MAXX mark.
2. Respondent
does not have any rights or legitimate interests in the <centrumforce.com>, <centrumforce.org>,
<centrumforce.net>, <centrumforce.info>, <centrumforce.biz>,
<centrimaxx.com>, <centrimaxx.org>, <centrimaxx.net>,
<centrimaxx.info>, <centrimaxx.biz>, <centri-maxx.com>,
<centri-maxx.org>, <centri-maxx.net>, <centri-maxx.info>,
and <centri-maxx.biz> domain name.
3. Respondent
registered and used the <centrumforce.com>, <centrumforce.org>,
<centrumforce.net>, <centrumforce.info>, <centrumforce.biz>,
<centrimaxx.com>, <centrimaxx.org>, <centrimaxx.net>,
<centrimaxx.info>, <centrimaxx.biz>, <centri-maxx.com>,
<centri-maxx.org>, <centri-maxx.net>, <centri-maxx.info>,
and <centri-maxx.biz> domain name in bad faith.
B.
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Centrum Force,
LLC, was organized pusuant to Michigan
state law on February
23, 2007 (ID No. D1547C).
Complainant operates a business selling large area rug-cleaning machines
to industrial customers. Complainant
sells the CENTRI-MAXX rug cleaner under the business organization called
CENTRUM FORCE. Complainant sold its
first CENTRI-MAXX machine in February 2007.
On March 22 through March 24, 2007, Thomas Monahan, representing Complainant,
attended a master rug cleaner certification couse attended by industry
professionals. Complainant holds
trademark registrations of the CENTRUM FORCE (Reg. No. 3,500,559 issued Sept. 16, 2008 filed
Nov. 26, 2007)
and CENTRI-MAXX (Reg.
No. 3,503,432 issued Sept.
23, 2008 filed Nov. 26, 2007) marks with the United States Patent and
Trademark Office (“USPTO”). Both USPTO
registrations list the first use in commerce as February 21, 2007. Complainant has also advertised using the CENTRUM
FORCE and CENTRI-MAXX
marks since Complainant’s company began.
Respondent
registered the disputed domain names on March 26, 2007. The <centrumforce.com> domain
name redirects Internet users to the website resolving from the
<arearugcleaningequipment.com> domain name. The remainding 14 disputed domain names
redirect Internet users to the website resolving from the
<arearugcleaningequipment.com/products> domain name. Both of the resolving websites appear to be
for “Ron’s Area Rug Cleaning Equipment,” a company in direct competition with
Complainant.
DISCUSSION
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.
Identical and/or Confusingly Similar
Complainant must first establish that is has rights in the
CENTRUM FORCE and CENTRI-MAXX
marks under Policy ¶ 4(a)(i).
Complainant submitted evidence of federal trademark registrations of the
marks in September 2008. These
registrations establish rights in the marks.
See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006)
(finding that the complainants had established rights in marks where the marks
were registered with a trademark authority); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that
the complainant’s federal trademark registrations for the CHEAPTICKETS and
CHEAPTICKETS.COM marks were adequate to establish its rights in the mark
pursuant to Policy ¶ 4(a)(i)). The
Panel finds that Complainant may also choose to establish common law rights in
its marks under Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood,
D2000-0131 (WIPO Apr.
13, 2000) (finding that the Rules do not require that the
complainant's trademark or service mark be registered by a government authority
or agency for such rights to exist); see also Goepfert v. Rogers,
FA 861124
(Nat. Arb. Forum Jan.
17, 2007) (“[T]here is no
particular amount of evidence required in order to establish common law
rights. The determination of what is
sufficient is ad hoc based on the specific facts and circumstances involved, as
is the scope of the rights once established.”).
Complainant
registered the CENTRUM FORCE mark as a trade name with the Michigan Department of
Labor in February 2007. Beginning in
February 2007, Complainant marketed its CENTRI-MAXX area rug cleaners under the business name CENTRUM
FORCE. The USPTO registrations list the
first use in commerce date of both marks as February 21, 2007. While the trademark registration was issued
after the disputed domain names were registered, the issuance of the trademark
supports the Panel’s finding that Complainant has established rights in the
marks pursuant to Policy ¶ 4(a)(i). The
Panel finds that Complainant has established common law rights in the CENTRUM
FORCE and CENTRI-MAXX
marks prior to Respondent’s registration of the disputed domain name
through its continuous use of the marks and pursuant to Policy ¶ 4(a)(i). See Artistic Pursuit LLC v.
calcuttawebdevelopers.com,
FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (concluding that the complainant had
established common law rights in the ARTISTIC PURSUIT mark by using the mark in
commerce before Respondent registered the disputed domain name); see also Bob Jones Univ. v. Kane, FA 324692 (Nat. Arb. Forum Oct. 21, 2004)
(finding that the complainant’s listing of first use of the BOB JONES
UNIVERSITY mark on its USPTO registration information establishes that the
complainant had used the mark continuously and extensively since the time of
first use, thereby establishing rights in the mark pursuant to Policy ¶
4(a)(i)).
The <centrumforce.com>, <centrumforce.org>,
<centrumforce.net>, <centrumforce.info>, and <centrumforce.biz>
domain names consist of Complainant’s CENTRUM FORCE mark, omitting the
space between the two words of the mark and adding a generic top-level domain
(“gTLD”). The Panel finds that the
omission of a space and the addition of a gTLD is immaterial for an analysis
under Policy ¶ 4(a)(i) and therefore the disputed domain names are identical to
Complainant’s CENTRUM FORCE mark. See Hannover
Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding
<hannoverre.com> to be identical to HANNOVER RE, “as spaces are
impermissible in domain names and a generic top-level domain such as ‘.com’ or
‘.net’ is required in domain names”); see
also 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).”).
The <centrimaxx.com>, <centrimaxx.org>,
<centrimaxx.net>, <centrimaxx.info>, and <centrimaxx.biz>,
domain names omit the hyphen from Complainant’s CENTRI-MAXX mark and add a
gTLD. The Panel finds that the omission
of a hyphen and addition of a gTLD renders the disputed domain names
confusingly similar pursuant to Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost in Space, SA,
FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle
that generic top-level domains are irrelevant when conducting a Policy ¶
4(a)(i) analysis.”); see also Nat’l Cable Satellite Corp. v. Black Sun Surf Co., FA 94738 (Nat. Arb. Forum June 19, 2000) (holding that
the domain name <cspan.net>, which omitted the hyphen from the trademark
spelling, C-SPAN, is confusingly similar to the complainant's mark under Policy
¶ 4(a)(i)).
The
<centri-maxx.com>, <centri-maxx.org>, <centri-maxx.net>,
<centri-maxx.info>, and <centri-maxx.biz> domain
names consist of Complainant’s CENTRI-MAXX mark in its entirety with a gTLD
added to the end. The Panel finds these
five disputed domain names are identical to Complainant’s CENTRI-MAXX mark
pursuant to Policy ¶ 4(a)(i). See Isleworth, supra; see also Sea World, Inc. v. JMXTRADE.com, FA
872052 (Nat. Arb. Forum Feb. 12, 2007) (“[Since] [t]he top-level gTLD is merely a
functional element required of every domain name, the <shamu.org> domain
name is identical to the SHAMU mark under a Policy ¶ 4(a)(i).”).
The Panel finds that Complainant has satisfied Policy ¶
4(a)(i).
Rights or Legitimate Interests
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
names. 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 names pursuant to the guidelines in Policy ¶
4(c). 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 disputed domain names
pursuant to Policy ¶ 4(a)(ii). Since no response was submitted in this
case, the Panel may presume that Respondent has no rights or legitimate
interests in the disputed domain names.
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 Jan. 4, 2008)
(“It is well established that, once a complainant has made out a prima facie case in support of its
allegations, the burden shifts to respondent to show that it does have rights
or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(“Because Complainant’s Submission constitutes a prima facie case under
the Policy, the burden effectively shifts to Respondent. Respondent’s failure
to respond means that Respondent has not presented any circumstances that would
promote its rights or legitimate interests in the subject domain name under
Policy ¶ 4(a)(ii).”).
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by any of the disputed domain names. Complainant asserts that Respondent has no
license or agreement with Complainant authorizing Respondent to use the CENTRUM
FORCE or CENTRI-MAXX
marks, and the WHOIS information identifies Respondent as “Diogenis Mavridis.” Thus, the Panel finds that Respondent has not
established rights or legitimate interests in the disputed domain name under
Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David
Sanders.’ Given the WHOIS domain name
registration information, Respondent is not commonly known by the
[<awvacations.com>] domain name.”).
The disputed domain names resolve to websites that directly
compete with Complainant in a highly specialized industry. The Panel infers that the resolving website
either belongs to Respondent or the owner of the resolving websites is paying
Respondent to direct Internet users from its direct competitor. Either way, the Panel finds that Respondent
is attempting to disrupt Complainant’s business for financial gain. The Panel further finds Respondent’s use is
neither a bona fide offering of goods
or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's
demonstrated intent to divert Internet users seeking Complainant's website to a
website of Respondent and for Respondent's benefit is not a bona fide offering
of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Coryn Group, Inc. v.
Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that
the respondent was not using the domain names for a bona fide offering
of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii) because the respondent used the names to
divert Internet users to a website that offered services that competed with
those offered by the complainant under its marks).
The Panel finds that Complainant has satisfies Policy ¶
4(a)(ii).
Registration and Use in Bad Faith
Respondent registered the fifteen disputed domain names on
the same day. The Panel finds that
registering multiple infringing domain names within such a short period of time
is evidence that Respondent wanted to prevent Complainant from reflecting its
marks online. The Panel therefore finds
Respondent registered and used the domain names in bad faith under Policy ¶
4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000)
(finding that one instance of registration of several infringing domain names
satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also Caterpillar Inc. v. Miyar, FA 95623 (Nat. Arb. Forum Dec. 14, 2000) (finding that
registering multiple domain names in a short time frame indicates an
intention to prevent the mark holder from using its mark and provides evidence
of a pattern of conduct).
The disputed domain names all redirect Internet users to a
website for Complainant’s direct competitor.
The Panel finds the by doing so, Respondent intended to disrupt
Complainant’s business by using Complainant’s marks. The Panel finds this is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). See
Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001)
(finding that, given the competitive relationship between the complainant and
the respondent, the respondent likely registered the contested domain name with
the intent to disrupt the complainant's business and create user confusion); see also EthnicGrocer.com, Inc. v.
Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith
under Policy ¶ 4(b)(iii) where the respondent’s sites pass users through to the
respondent’s competing business)
Respondent is using the disputed domain names to redirect Internet
users to Complainant’s direct competitor.
The Panel infers that Respondent is either the direct competitor, or is
otherwise profiting from the redirection.
Internet users entering any of the disputed domain names, which are
identical or confusingly similar to Complainant’s marks, would easily become
confused as to Complainant’s affiliation or sponsorship of the resolving
website. Respondent is seeking to profit
from this confusion. The Panel finds
this is further evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iv). See Velv, LLC v. AAE,
FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the
<arizonashuttle.net> domain name, which contained the complainant’s
ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website
offering competing travel services violated Policy ¶ 4(b)(iv)); see also Identigene,
Inc. v. Genetest Labs.,
D2000-1100 (WIPO Nov.
30, 2000) (finding bad faith where the respondent's use of the
domain name at issue to resolve to a website where similar services are offered
to Internet users is likely to confuse the user into believing that the
complainant is the source of or is sponsoring the services offered at the site).
Furthermore, the Panel finds that it may consider the
totality of the circumstances when conducting a Policy ¶ 4(a)(iii) analysis,
and that it is not limited to the enumerated factors in Policy ¶ 4(b). See 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.”).
Respondent
registered the disputed domain names on March 26, 2007, two days after
Complainant’s representative appeared at a conference of area rug cleaners
under the CENTRUM FORCE name and advertising a area rug cleaning system using
the CENTRI-MAXX mark. The Panel finds that the timing of
Respondent’s registration of the disputed domain names is evidence of
opportunistic bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Sota v. Waldron, D2001-0351 (WIPO
June 18, 2001)
(finding that the respondent’s registration of the
<seveballesterostrophy.com> domain name at the time of the announcement
of the Seve Ballesteros Trophy golf tournament “strongly indicates an opportunistic
registration”); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (“If
there had been any doubt as to bad faith, the fact that registration was on the
same day the news leaked about the merger, which was put in evidence, is a
compelling indication of bad faith that [the] respondent has to refute and
which he has failed to do. The panel
finds a negative inference from this.”)
The Panel finds that Complainant has satisfies Policy ¶
4(a)(iii).
DECISION
Having established all three elements required under the
ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <centrumforce.com>, <centrumforce.org>,
<centrumforce.net>, <centrumforce.info>, <centrumforce.biz>,
<centrimaxx.com>, <centrimaxx.org>, <centrimaxx.net>,
<centrimaxx.info>, <centrimaxx.biz>, <centri-maxx.com>,
<centri-maxx.org>, <centri-maxx.net>, <centri-maxx.info>,
and <centri-maxx.biz> domain name be TRANSFERRED
from Respondent to Complainant.
James
A. Carmody, Esq., Panelist
Dated: April 16, 2009
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