Maruchan, Inc. v. Wanco Pet Supply
Claim Number: FA0905001263633
Complainant is Maruchan,
Inc. (“Complainant”), represented by Maulin
V. Shah, of Snell & Wilmer L.L.P.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <maruchan.net>, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 19, 2009.
On May 19, 2009, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <maruchan.net> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. 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 May 26, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 15, 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 by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 19, 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 <maruchan.net> domain name is identical to Complainant’s MARUCHAN mark.
2. Respondent does not have any rights or legitimate interests in the <maruchan.net> domain name.
3. Respondent registered and used the <maruchan.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Maruchan, Inc., is the owner of the MARUCHAN mark, registered with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 1,626,154 issued December 4, 1990). Complainant uses the MARUCHAN mark in connection with its line of food products including ramen noodles, soup broth concentrates and other dehydrated noodle meals.
Respondent registered the <maruchan.net> domain name on October 13, 1998. The disputed domain name resolves to a website displaying the phrase “under construction.”
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 has established its rights in the MARUCHAN mark under
Policy ¶ 4(a)(i) based on its registration with the
Respondent’s <maruchan.net> domain name
contains Complainant’s entire MARUCHAN mark with the mere addition of the
generic top-level domain “.net.” The
Panel finds that the addition of a generic top-level domain such as “.net” is
irrelevant for purposes of a Policy ¶ 4(a)(i)
analysis. See Little Six, Inc. v. Domain For
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must present a prima facie case in support of these allegations. Once it has done so, the burden shifts to Respondent to prove that it nonetheless does have rights to or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights to or legitimate interests with respect to a contested domain name, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel finds that Complainant has presented the requisite prima facie case in support of its allegations and that Respondent has failed to respond to these proceedings. Therefore, the Panel concludes that Respondent does not possess rights to or legitimate interests in the disputed domain name. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”). The Panel will, however, examine the record further to determine if there is any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name within the parameters set out in Policy ¶ 4(c).
Complainant alleges that Respondent lacks rights and legitimate interests in the <maruchan.net> domain name pursuant to Policy ¶ 4(c)(ii). The pertinent WHOIS information lists the registrant as “Wanco Pet Supply” and the record does not indicate that Respondent has ever been commonly known by the disputed domain name. Therefore, the Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
The disputed domain name resolves to a website containing the phrase “under construction.” Complainant contends that Respondent has failed to make an active use of the disputed domain name and resolving website for the last seven years. The Panel concludes that Respondent has made no demonstrable preparations to use the disputed domain name as an active website and such non-use of the domain name does not constitute 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 Hewlett-Packard Co. v. Rayne, FA 101465 (Nat. Arb. Forum Dec. 17, 2001) (finding that the “under construction” page, hosted at the disputed domain name, did not support a claim of right or legitimate interest under Policy ¶ 4(a)(ii)); see also T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (concluding that the respondent had no rights or legitimate interests in the <worldgyms.com> domain name because it contained no substantive content, just the phrase “coming soon” and a picture of someone working out).
Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel notes that the examples of bad faith registration and use prescribed in Policy ¶ 4(b) are intended to be illustrative and not exhaustive. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith) Thus, the Panel may find bad faith beyond the perimeters of Policy ¶ 4(b). See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).
The Panel finds that Respondent’s registration and use of the <maruchan.net> domain name is in bad faith within the meaning of Policy ¶ 4(a)(iii) because Respondent has not made an active use of the disputed domain name and has no demonstrable preparations to develop it over a seven year period. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith). The Panel therefore concludes that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
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 <maruchan.net> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: June 30, 2009
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