Straight Arrow Products, Inc. v. Tom Stevens c/o straightarrow
Claim Number: FA0904001257224
Complainant is Straight Arrow Products, Inc. (“Complainant”), represented by John
J Marshall of Drinker Biddle & Reath LLP, Pennsylvania,
USA. Respondent is Tom Stevens c/o
straightarrow (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <straightarrow.info>, registered with GoDaddy.com, Inc.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically April 10, 2009; the National Arbitration Forum received a hard copy of the Complaint April 14, 2009.
On April 13, 2009, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <straightarrow.info> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On April 22, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 12, 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@straightarrow.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 19, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <straightarrow.info>, is identical to Complainant’s STRAIGHT ARROW mark.
2. Respondent has no rights to or legitimate interests in the <straightarrow.info> domain name.
3. Respondent registered and used the <straightarrow.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant sells hair and skin products, for both humans
and animals, under the STRAIGHT ARROW mark, which Complainant registered with
the United States Patent and Trademark Office (“USPTO”) on October 3, 1995
(Reg. No. 1,923,210). Complainant has
used the STRAIGHT ARROW mark continuously in commerce to advertise and sell its
products since at least as early as 1988, throughout the
Respondent registered the <straightarrow.info> domain name March 24, 2009. The disputed domain name resolves to a website containing links to third-party websites advertising products of Complainant’s competitors.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 established rights in the STRAIGHT
ARROW mark for purposes of Policy ¶ 4(a)(i) through
its trademark registration with the USPTO.
See Miller Brewing
Complainant contends that
Respondent’s <straightarrow.info>
domain name is identical to Complainant’s STRAIGHT
ARROW mark.
The <straightarrow.info> domain name differs from Complainant’s mark in two ways:
(1) the space between the terms has been removed; and (2) the generic top-level
domain (gTLD) “.info” has been added to the mark. The Panel finds that removing the space from
a mark does not sufficiently distinguish a domain name from that mark for the
purposes of Policy ¶ 4(a)(i). See
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks all rights and legitimate interests in the <straightarrow.info> domain name. Under Policy ¶ 4(a)(ii), if the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing evidence that it does have rights to or legitimate interests in the disputed domain name. The Panel finds that Complainant made a prima facie case under Policy ¶ 4(a)(ii). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). Respondent did not appear to show rights.
Complainant contends that although the WHOIS record suggests
that Respondent is commonly known by the disputed domain name, Respondent is
not commonly known by the <straightarrow.info>
domain name nor has it ever been the owner or licensee
with a right to use the STRAIGHT ARROW mark.
The WHOIS record for the disputed domain name lists Respondent as “Tom Stevens c/o straightarrow.” However, Respondent has failed to show any
evidence contrary to Complainant’s contentions, and after review, the Panel
finds no other evidence outside of the WHOIS information that Respondent has
ever been known by any variant on the STRAIGHT ARROW mark. Therefore, the Panel finds that Respondent is
not commonly known by the <straightarrow.info>
domain name pursuant to
Policy ¶ 4(c)(ii).
See Nature’s Path Foods
Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In
its WHOIS contact information, Respondent lists its name and its administrative
contact as ‘Natures Path, Inc.’ However, since Respondent failed to
respond to the Complaint, there has not been any affirmative evidence provided
to the Panel showing that Respondent was commonly known by the disputed domain
name prior to its registration of the domain name.”);
see also Gestmusic Endemol,
S.A. v. operaciontriunfo.us, FA 214337 (Nat. Arb. Forum Jan. 14, 2004) (“Though Respondent’s WHOIS information lists Respondent’s
name as ‘o. operaciontriunfo.us’ and organization as ‘operaciontriunfo.us,’
there is no evidence before the Panel that Respondent was actually commonly
known by the [<operaciontriunfo.us>] domain
name.”).
Respondent is using the <straightarrow.info> domain name to host a website that features links to third-party websites that are competing with Complainant’s business. Complainant contends that Respondent receives “click-through” fees from those third-party websites. The Panel finds that this commercial benefit by Respondent is evidence that its use of the <straightarrow.info> domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and that it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant contends that Respondent is using he <straightarrow.info> domain name to direct
Internet customers to the website that resolves from the disputed domain
name. Complainant also contends that
Respondent is intentionally disrupting Complainant’s business by further
diverting confused customers to third-party websites that sell products similar
to Complainant’s products. The Panel
finds that Respondent is disrupting Complainant’s business, and therefore, that
Respondent’s registration and use of the disputed domain name is in bad faith
pursuant to Policy ¶ 4(b)(iii). See
Complainant also contends that this diversion commercially
benefits Respondent, in the form of the click-through fees that Respondent is
receiving from the third-party websites.
In the Panel’s judgment, Respondent is intentionally using the disputed
domain name for commercial gain by creating a likelihood of confusion with
Complainant’s mark, and so, pursuant to Policy ¶ 4(b)(iv),
the Panel finds that this use is also evidence of Respondent’s registration and
use of the <straightarrow.info>
domain name in bad faith.
The Panel finds that Complainant satisfied the elements of ICANN 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 <straightarrow.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: June 2, 2009.
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