The Camping and Caravanning Club Limited v. [Registrant]
Claim Number: FA0906001268447
Complainant is The Camping and Caravanning Club Limited (“Complainant”), represented by Brian
A. Hall of Traverse Legal, PLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <campingandcaravanningclub.net>, registered with Xin Net Technology Corporation.
The undersigned certifies that she has 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 June 15, 2009; the National Arbitration Forum received a hard copy of the Complaint June 16, 2009.
On June 16, 2009, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <campingandcaravanningclub.net> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the namej. Xin Net Technology Corporation verified that Respondent is bound by the Xin Net Technology Corporation 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 June
24, 2009, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of July
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@campingandcaravanningclub.net
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 20, 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, <campingandcaravanningclub.net>, is confusingly similar to Complainant’s THE CAMPING AND CARAVANNING CLUB mark.
2. Respondent has no rights to or legitimate interests in the <campingandcaravanningclub.net> domain name.
3. Respondent registered and used the <campingandcaravanningclub.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant operates, inspects, and offers guides to
campsites worldwide, and promotes its services under the THE CAMPING AND
CARAVANNING CLUB mark, which Complainant registered with the Patent Office of
Great Britain and
Respondent registered the <campingandcaravanningclub.net> domain name June 10, 2007. The disputed domain name does not resolve to an active website.
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
THE CAMPING AND CARAVANNING CLUB mark for purposes of Policy ¶ 4(a)(i) through its trademark registration with the Patent
Office of Great Britain and
Complainant contends that
Respondent’s <campingandcaravanningclub.net>
domain name is confusingly similar to its THE
CAMPING AND CARAVANNING CLUB mark. The disputed domain name differs from
Complainant’s mark in three ways: (1) the article “the” has been removed from
the beginning of the mark; (2) the spaces have been removed from the mark; and
(3) the generic top-level domain (“gTLD”) “.net” has been added to the end of
the mark. The Panel finds that under Policy ¶ 4(a)(i), removing an article and spaces from a mark does not sufficiently
distinguish a domain name from a mark that it incorporates. See Playboy Enters. v. Movie Name Co., D2001-1201
(WIPO Feb. 26, 2002) (finding the domain name <channelplayboy.com>
confusingly similar to the mark THE PLAYBOY CHANNEL); see also NCRAS Mgmt., LP v.
Cupcake City, D2000-1803 (WIPO Feb. 26, 2001) (finding the domain name
<nationalrentalcar.com> confusingly similar to the mark NATIONAL CAR
RENTAL and holding that “merely inverting the terms of a
mark . . . is quite insufficient to dispel consumer
confusion; the mark and the resulting domain name are simply too similar to
each other”).
Furthermore, the Panel finds that the addition
of a gTLD does nothing to distinguish a domain name from a mark because all
domain names must include a top-level domain.
See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum
Sept. 27, 2002) ( “[I]t is a well established
principle that generic top-level domains are irrelevant when conducting a
Policy ¶ 4(a)(i) analysis.”). Therefore,
the Panel finds that the disputed domain name is not sufficiently distinguished
from, and is confusingly similar to, Complainant’s THE CAMPING AND
CARAVANNING CLUB mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied the element of ICANN Policy ¶ 4(a)(i).
Complainant alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant made a prima facie case to this effect pursuant to Policy ¶ 4(a)(ii). Once Complainant makes a prima facie showing, the burden of proof shifts to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion examines the record to determine whether evidence before the Panel suggests that Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
Complainant contends that Respondent is not commonly known
by the <campingandcaravanningclub.net>
domain name, and that Respondent has not been the owner or licensee of the THE
CAMPING AND CARAVANNING CLUB mark. Further,
no evidence in the WHOIS record for the disputed domain name or elsewhere indicates
that Respondent has ever been commonly known by the disputed domain name.
Because Respondent has failed to show any evidence contrary to Complainant’s
contentions that it is not known by any variant of the THE CAMPING AND
CARAVANNING CLUB mark, the Panel finds that Respondent is not commonly known by
the disputed domain name pursuant to Policy ¶ 4(c)(ii). See
Educ. Broad. Corp. v.
DomainWorks Inc., FA 882172 (Nat. Arb.
Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by
the <thirteen.com> domain name based on all evidence in the record, and
the respondent did not counter this argument in its response); see also M.
Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the
respondent was not commonly known by the <cigaraficionada.com> domain
name under Policy ¶ 4(c)(ii) based on the WHOIS
information and other evidence in the record).
The <campingandcaravanningclub.net> domain name does not resolve to an active website, and Complainant contends that Respondent has never made an active use of the disputed domain name. The Panel finds that Respondent’s failure to make an active use of the <campingandcaravanningclub.net> domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the respondent has advanced no basis on which the panel could conclude that it has a right or legitimate interest in the domain names, and no commercial use of the domain names has been established).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
The Panel finds that it may consider the totality of the circumstances surrounding the disputed domain name, and that evidence of bad faith is not limited to the factors enumerated in Policy ¶¶ 4(b)(i-iv). 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”); see also Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)], does not mean that the domain names at issue were not registered in and are not being used in bad faith.”).
Complainant contends that Respondent failed to make an
active use of the disputed domain name, and that this failure results in
Internet users thinking that Complainant has ceased business operations. The Panel finds that Respondent’s failure to
make an active use of the <campingandcaravanningclub.net>
domain name, with detrimental consequences for Complainant, supports findings
of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Am.
Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb.
Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active
use of its domain name in the three months after its registration indicated that
the respondent registered the disputed domain name in bad faith); see also 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).
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 <campingandcaravanningclub.net> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: August 3, 2009.
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