Bord na Mona, P.L.C. v. Chris Carter
Claim Number: FA0904001257982
Complainant is Bord na Mona, P.L.C. (“Complainant”), represented by Gilbert J.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <puraflo.com>, registered with Epag Domainservices Gmbh.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2009; the National Arbitration Forum received a hard copy of the Complaint on April 16, 2009.
On April 20, 2009, Epag Domainservices Gmbh confirmed by e-mail to the National Arbitration Forum that the <puraflo.com> domain name is registered with Epag Domainservices Gmbh and that Respondent is the current registrant of the name. Epag Domainservices Gmbh has verified that Respondent is bound by the Epag Domainservices Gmbh 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 24, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 14, 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@puraflo.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 20, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <puraflo.com> domain name is identical to Complainant’s PURAFLO mark.
2. Respondent does not have any rights or legitimate interests in the <puraflo.com> domain name.
3. Respondent registered and used the <puraflo.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bord na Mona, P.L.C., is the owner of the PURAFLO mark, registered with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 1,953,921, issued February 6, 1996). Complainant uses the PURAFLO mark in conjunction with marketing and advertising of the PURAFLO treatment system for residential and commercial septic tank systems.
Respondent registered the <puraflo.com> domain name on December 6, 2008. Respondent is using the domain name to resolve to a website offering sponsored click-through links that further resolve to websites offering goods and services in competition with Complainant’s business, as well as offering the <puraflo.com> domain name for sale. Respondent has no affiliation with Complainant or its PURAFLO mark.
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 has established its rights
in its PURAFLO mark based on its registration of the mark with the USPTO under
Policy ¶ 4(a)(i).
See Microsoft
Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the
MICROSOFT mark through registration of the mark with the USPTO.”); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately
demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights or legitimate interests in the <puraflo.com> domain name. For the purposes of a Policy ¶ 4(a)(ii) analysis, Complainant must meet the burden of production for its prima facie case, and then the burden of persuasion is shifted to Respondent. Respondent must bring themselves within the purview of Policy ¶ 4(c), or put forward some other reason why it can fairly be said to have a relevant right or legitimate interest in relation to the domain name in question. In this case, Respondent failed to respond to the Complaint. Based on Respondent’s failure to contest the allegations against it, the Panel may accept as true all reasonable allegations made by Complainant. Complainant has presented a prima facie case and the Panel now chooses to consider whether an evaluation of all the evidence and reasonable inferences shows any rights or legitimate interests for Respondent under 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 Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).
Complainant alleges that Respondent was not authorized to
use the PURAFLO mark and therefore has no rights or legitimate interests in the
<puraflo.com> domain name. The Panel finds no evidence in the record to
suggest that Respondent is commonly known by the <puraflo.com> domain name to establish rights or legitimate
interest in the domain name at issue.
The WHOIS information lists the registrant as “Chris Carter.” Given the WHOIS information for the disputed
domain name, as well as the lack of evidence in the record to suggest any other
identity, Respondent is not commonly known by the <puraflo.com> domain
name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat.
Arb. Forum July 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name); see also 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).
Complainant alleges
that Respondent lacks rights or legitimate interest in the <puraflo.com>
domain name because Respondent is using the domain name to divert Internet
users, and that such use is not a bona
fide offering and noncommercial or fair use under Policy ¶¶ 4(c)(i) or
(iii). Respondent is taking advantage of
the identicality between Complainant’s PURAFLO mark and the <puraflo.com>
domain name to utilize click-through
links that resolve to sponsored websites competing with Complainant’s
business. The Panel finds that
Respondent’s use of the disputed domain name as a parked website to presumably
earn click-through fees does not constitute a bona fide offering of goods or services pursuant to Policy ¶¶ 4(c)(i) or (iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb.
Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the
complainant’s marks to send Internet users to a website which displayed a
series of links, some of which linked to the complainant’s competitors, was not
a bona fide offering of goods or services); see also Jerry Damson, Inc. v.
Complainant further alleges that Respondent lacks rights or legitimate interests in the <puraflo.com> domain name because Respondent is attempting to “auction off” the domain. The Panel finds that Respondent’s conduct showing intent to sell the domain name suggests that Respondent has no rights or legitimate interest in the domain name pursuant to Policy ¶ 4(a)(ii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“UDRP precedent is clear that auctioning domains does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains.”); see also Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the respondent registered the domain name with the intention of selling its rights).
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(i) based on Respondent’s express intent to sell the disputed domain name through the invitation to Internet users to make an “offer” for the disputed domain name. The Panel concludes that Respondent’s intent to sell the domain name demonstrates bad faith registration and use under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale).
Complainant also alleges that Respondent has engaged in bad
faith registration and use pursuant to Policy ¶ 4(b)(iii)
by using the disputed domain name to operate a website to display links to
Complainant’s competitors’ websites. The
Panel concludes that Respondent’s use of the disputed domain name, which is
identical to Complainant’s PURAFLO mark, to attract Internet users to a
directory website containing commercial links to the websites of Complainant’s
competitors constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Red Hat, Inc. v.
Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the
respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a
commercial search engine with links to the products of the complainant and to
complainant’s competitors, as well as by diverting Internet users to several
other domain names); see also
Complainant also alleges that Respondent’s use of the domain
name constitutes bad faith based on Respondent’s intentional attempt to attract
Internet users to Respondent’s website for commercial gain. The Panel finds that Respondent has created a
likelihood of confusion with Complainant’s mark as to the affiliation of the
disputed domain name and resolving website pursuant to Policy ¶ 4(b)(iv). See AOL
LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that
the respondent registered and used the disputed domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) because the respondent
was commercially gaining from the likelihood of confusion between the complainant’s
AIM mark and the competing instant messaging products and services advertised
on the respondent’s website which resolved from the disputed domain name); see also Maricopa Cmty. Coll. Dist. v. College.com, LLC, FA
536190 (Nat. Arb. Forum Sept. 22, 2005) (“The Panel infers
that Respondent receives click-through fees for diverting Internet users to a
competing website. Because Respondent’s
domain name is identical to Complainant’s
Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <puraflo.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: June 3, 2009
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