Jim Williams v. Louis Smith
Claim Number: FA0904001257389
Complainant is Jim Williams,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <hurricanecity.net>, <hurricanecity.org> and <hurricanecity.info>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Hon. Harold Kalina as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 13, 2009; the National Arbitration Forum received a hard copy of the Complaint on April 15, 2009.
On April 13, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <hurricanecity.net>, <hurricanecity.org> and <hurricanecity.info> 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 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 email@example.com, firstname.lastname@example.org and email@example.com 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. Harold Kalina as Panelist.
On May 21, 2009, the Forum received an email from Respondent, alleging that he had only then learned of this dispute. Complainant followed up with an email the same day, providing tracking numbers for the served complaint, which was received. The Panel notes that the email address used to serve Respondent is the same from which the Forum received Respondent’s objection.
On May 22, 2009, the Forum received further abbreviated correspondence from both parties. Neither email was helpful to the Panel in making a decision. In particular, the Panel notes Respondent made no attempt to utilize the UDRP elements in its defense.
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 formal response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
and <hurricanecity.info> domain names are identical to
2. Respondent does not have any rights or legitimate interests in the <hurricanecity.net>, <hurricanecity.org> and <hurricanecity.info> domain names.
3. Respondent registered and used the <hurricanecity.net>, <hurricanecity.org> and <hurricanecity.info> domain names in bad faith.
B. Respondent failed to submit a formal Response in this proceeding. Its email objecting to this process has been noted but does not affect the Panel’s decision.
Complainant, Jim Williams, is the owner of the <hurricanecity.com> domain name, which resolves to a website providing information about hurricanes and their target cities. Complainant has operated this website since 1998 as a service to citizens who could be struck by hurricanes.
Respondent registered the <hurricanecity.net> and <hurricanecity.org> domain names on April 11, 2008, and the <hurricanecity.info> domain name on April 11, 2007. Respondent’s disputed domain names resolve to websites that contain Complainant’s mark and logo, and display replicas of Complainant’s content resolving from its <hurricanecity.com> domain name.
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 does not have a trademark registration for the
Complainant asserts it has common law rights in its
Complainant argues that Respondent’s disputed domain names are identical to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”).
Respondent’s disputed domain names resolve to websites mimicking Complainant’s website resolving from the <hurricanecity.com> domain name by using Complainant’s HURRICANE CITY mark and copying its content. Respondent is attempting to pass itself off as Complainant by creating a likelihood of confusion in order to divert Internet users to Respondent’s disputed domain names. The Panel finds that such registration and use of a identical domain names is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
Respondent’s WHOIS registration is evidence that Respondent
is not commonly known by the disputed
domain names, in that the registrant is listed as “Louis Smith.” Without further evidence to the contrary, the
Panel finds that Respondent is not commonly known by the disputed domain names
pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA
699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not
commonly known by the disputed domain names where the WHOIS information, as
well as all other information in the record, gave no indication that the
respondent was commonly known by the disputed domain names, and the complainant
had not authorized the respondent to register a domain name containing its
registered mark); see also
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the disputed domain names to pass itself as Complainant. The Panel finds that this constitutes bad faith use and registration pursuant to Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the impression that the complainant endorsed and sponsored the respondent’s website).
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 <hurricanecity.net>, <hurricanecity.org> and <hurricanecity.info> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Harold Kalina
Dated: May 28, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum