HSI Fire & Safety Group LLC v. SDi Inc. c/o Rick Heffernan
Claim Number: FA0906001266583
Complainant is HSI Fire & Safety Group LLC (“Complainant”), represented by Andrew
L. Goldstein, of Freeborn & Peters LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <smokecheck.com>, registered with Enom, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 1, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <smokecheck.com> domain name is identical to Complainant’s SMOKE CHECK mark.
2. Respondent does not have any rights or legitimate interests in the <smokecheck.com> domain name.
3. Respondent registered and used the <smokecheck.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, HSI Fire &
Safety Group LLC, is a business that offers smoke detectors, smoke detector
testing, and other fire safety measures.
Complainant uses the SMOKE CHECK mark in connection with its
smoke detector testing devices. The
United States Patent and Trademark Office (“USPTO”) has issued several
trademark registrations to Complainant for the SMOKE CHECK mark. (i.e. Reg. No.
2,787,095 issued
Respondent registered the <smokecheck.com>
domain name on
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
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 the Complainant has established rights in
the SMOKE CHECK mark pursuant to Policy ¶ 4(a)(i) via
its registration of the mark with the USPTO.
See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum
Respondent’s <smokecheck.com>
domain name differs from Complainant’s SMOKE CHECK mark by omitting the space
between the words of the mark and adding the generic top-level domain (“gTLD”)
“.com.” The Panel finds that these
changes are insignificant in a Policy ¶ 4(a)(i)
analysis, and therefore the <smokecheck.com>
domain name is identical to Complainant’s SMOKE CHECK mark. See
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the <smokecheck.com> domain name. 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 name 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 <smokecheck.com>
domain name 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 name. 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
Complainant asserts that Respondent is not an affiliate,
licensee or distributor of Complainant and has never been authorized to use
Complainant’s SMOKE CHECK mark. Further,
Complainant argues that Respondent is not and has never been commonly known by
the <smokecheck.com> domain
name, but is in fact a direct competitor of Complainant. The WHOIS information associated with the
disputed domain name identifies Respondent as “SDi
Inc. c/o Rick Heffernan.” The Panel
finds that Respondent is not commonly known by the <smokecheck.com>
domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum
The <smokecheck.com>
domain name redirects Internet users to Respondent’s website, which offers
smoke detector testing devices in direct competition with the devices offered
by Complainant under its SMOKE CHECK mark.
The Panel finds that this use is not a bona fide offering or goods or services under Policy ¶ 4(c)(i) or 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
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The <smokecheck.com>
domain name, which is identical to Complainant’s SMOKE CHECK mark, redirects
Internet users to Respondent’s competitive website, which offers smoke detector
testing devices. The Panel finds that
Respondent, who is Complainant’s direct competitor, is using Complainant’s mark
to disrupt Complainant’s business. The
Panel finds this is evidence of bad faith registration and use under Policy ¶
4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat.
Arb. Forum
Respondent is using the <smokecheck.com>
domain name to redirect Internet users searching for Complainant to its own
directly competing website. When
Internet users type in Complainant’s mark, they would
reasonably expect to be directed to Complainant’s website offering
Complainant’s goods. When Respondent’s
website appears instead, Internet users are likely to become confused as to
Complainant’s sponsorship or affiliation with the disputed domain name and
resulting website. Respondent is
attempting to profit from this confusion, which the Panel finds to be evidence
of bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum
The Panel finds that Complainant has satisfied 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 <smokecheck.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 14, 2009
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