Ascentive, LLC v. Nitin Jain
Claim Number: FA0907001271914
Complainant is Ascentive, LLC, (“Complainant”), represented by Alexis Arena, of Flaster/Greenberg
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <finallyfast.us>, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On July 9, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 29, 2009 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the Rules, the 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.
1. Respondent’s <finallyfast.us> domain name is confusingly similar to Complainant’s FINALLYFAST.COM mark.
2. Respondent does not have any rights or legitimate interests in the <finallyfast.us> domain name.
3. Respondent registered and used the <finallyfast.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ascentive, LLC, owns a
registration for its FINALLYFAST.COM mark through the United States Patent and
Trademark Office (“USPTO”) (Reg. No. 3,533,775 issued
Respondent registered the <finallyfast.us> 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 the Complainant's undisputed representations pursuant to Paragraphs 5(f), 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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Identical and/or Confusingly Similar
The Panel finds that Complainant has
sufficiently established its rights in the FINALLYFAST.COM mark through its
registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Respondent’s disputed domain name includes Complainant’s FINALLYFAST.COM mark while substituting the generic top-level domain “.com” element of the mark with the country-code top-level domain (“ccTLD”) “.us.” The Panel finds that this alteration is not sufficiently meaningful in that top-level domains of all varieties are considered immaterial under a Policy ¶ 4(a)(i) analysis. Therefore, the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark); see also Cybertania, Inc v. Domain Drop S.A., FA 1118626 (Nat. Arb. Forum Feb. 28, 2008 (“the disputed domain names contains Complainant’s mark in its entirety but substitutes the gTLD ‘.com’ with the gTLD ‘.org’…[which does not] prevent a finding of confusing similarity pursuant to [UDRP] ¶ 4(a)(i).”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant has set forth a prima facie case supporting its allegations, as it has in this case, the burden shifts to Respondent to prove that is does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of [UDRP] paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
There is no evidence in the record to conclude that Respondent owns any
service marks or trademarks that reflect the disputed domain name.
Therefore the Panel finds
that Respondent does not have rights and legitimate interests pursuant to
Policy ¶ 4(c)(i).
See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb.
The WHOIS information for the disputed domain name describes Respondent as “Nitin Jain.” Moreover, Complainant contends that Respondent has no authorization or license to use Complainant’s mark. The Panel therefore finds that Respondent does not have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(iii), since Respondent is not commonly known by the disputed domain name. See 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 UDRP ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also 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).
The disputed domain name resolves to a website that displays Complainant’s mark as well as click-through advertising for third-party software developers. The Panel infers that Respondent is seeking to obtain revenue from displaying these hyperlinks. Therefore, the Panel finds that Respondent has failed in creating a bona fide offering of goods or services under Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under [UDRP] ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under [UDRP] ¶ 4(c)(iii).”); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under UDRP ¶ 4(c)(i) or a legitimate noncommercial or fair use under UDRP ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration or Use in Bad Faith
The Panel finds that Respondent’s display of
click-through links to other software developers on the resolving website is
the main intended use of the disputed domain name. As such, the Panel finds that Respondent
harbored the primary intent to disrupt Complainant’s business, which evidences
Respondent’s 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 UDRP ¶ 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 is commercially benefiting from these referrals through the receipt
of click-through fees. The Panel finds
that Respondent intentionally created a likelihood of confusion as to
Complainant’s sponsorship or endorsement of the disputed domain name and
resolving website. Therefore, Respondent
has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <finallyfast.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 18, 2009
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