Training Consultants, LLC v.
trainingconsultants.com a/k/a Buy This Domain
Claim Number: FA0210000127722
PARTIES
Complainant
is Training Consultants, LLC,
Fountain Valley, CA (“Complainant”) represented by Will Leahy. Respondent is trainingconsultants.com a/k/a Buy This Domain, Washington, DC (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <trainingconsultants.com>,
registered with Registration
Technologies, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on October 10, 2002; the Forum received a hard copy of the
Complaint on October 11, 2002.
On
October 20, 2002, Registration Technologies, Inc. confirmed by e-mail to the
Forum that the domain name <trainingconsultants.com>
is registered with Registration Technologies, Inc. and that Respondent is the
current registrant of the name. Registration
Technologies, Inc. has verified that Respondent is bound by the Registration
Technologies, 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
October 21, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of November
11, 2002 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@trainingconsultants.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
December 3, 2002, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as
Panelist.
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 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 Forum’s Supplemental Rules and any rules and
principles of law that the Panel deems applicable, without the benefit of any
Response from Respondent.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following allegations:
The
<trainingconsultants.com>
domain name is identical to Complainant’s TRAINING CONSULTANTS common law
mark. Respondent has no rights or
legitimate interests in the <trainingconsultants.com>
domain name. Respondent registered and
used the <trainingconsultants.com>
domain name in bad faith.
B.
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has used the TRAINING
CONSULTANTS mark to denote its services since 1979. Complainant provides securities training courses, products, and
consulting services to NASD and NYSE firms, governmental agencies, and
individuals throughout the world under the TRAINING CONSULTANTS mark.
In an effort to expand its business
services offered under the TRAINING CONSULTANTS moniker, Complainant developed
a website at <trainingconsultants.net>.
Complainant alleges that it has developed a strong business identity
under the guise of TRAINING CONSULTANTS and that the mark has a significant
amount of goodwill and recognition in the financial industry.
Due to the infringing character of the <trainingconsultants.com> domain
name, Complainant “is in the process of registering the [TRAINING CONSULTANTS]
mark with the United States Patent and Trademark Office for further protection
of the mark in the future.”
Respondent registered the <trainingconsultants.com> domain
name on June 17, 2002. Complainant
discovered that Respondent is in the business of selling domain name
registrations, which is evident from the information provided on the WHOIS page. Complainant revealed that upon registering
the <trainingconsultants.com>
domain name Respondent immediately offered the registration rights for sale at
its <buydomains.com> website.
Respondent has not actively used the <trainingconsultants.com> domain name other than to solicit
the sale of its registration rights.
The <trainingconsultants.com>
domain name registration rights were originally posted for sale at the sum of
$3,688. After Complainant communicated
its interests in the TRAINING CONSULTANTS mark with Respondent the asking price
was somewhat discounted. Respondent
later reinstated the $3,688 price.
DISCUSSION
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 will draw such
inferences as it considers appropriate pursuant to paragraph 14(b) of the
Rules.
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 alleged and provided
corroborating evidence of a common law interest in the TRAINING CONSULTANTS
mark, which Complainant used in commerce beginning in 1979, a date that is 23
years prior to Respondent’s registration of the domain name in issue. Complainant, therefore, satisfies the
standing requirement of Policy ¶ 4(a)(i).
See Fishtech v. Rossiter,
FA 92976 (Nat. Arb. Forum Mar. 10, 2000) (finding that Complainant has common
law rights in the mark FISHTECH, which it has used since 1982); see also
Great Plains Metromall, LLC v. Creach,
FA 97044 (Nat. Arb. Forum May 18, 2001) (finding that the Uniform Domain Name
Dispute Resolution Policy does not require “that a trademark be registered by a
governmental authority for such rights to exist”).
Respondent’s <trainingconsultants.com> domain name incorporates Complainant’s
common law TRAINING CONSULTANTS mark in its entirety. The <trainingconsultants.com>
domain name deviates from the TRAINING CONSULTANTS mark in two inconsequential
ways: (1) no space exists between the
words of the mark and (2) the domain name has a generic top-level domain. Spaces are not permitted in domain names and
generic top-level domains are required.
Hence, these minor variations have no impact on a Policy ¶ 4(a)(i)
identical analysis and Respondent’s <trainingconsultants.com>
domain name is identical to Complainant’s TRAINING CONSULTANTS mark. See
Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan.
7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as
spaces are impermissible in domain names and a generic top-level domain such as
‘.com’ or ‘.net’ is required in domain names”); see also Pomellato S.p.A v. Tonetti, D2000-0493
(WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s
mark because the generic top-level domain (gTLD) “.com” after the name
POMELLATO is not relevant).
The Panel finds that Policy ¶ 4(a)(i) has
been satisfied.
Complainant alleged a prima facie
case, which shifts the burden to Respondent to articulate its rights or
legitimate interests in the <trainingconsultants.com>
domain name. Respondent has failed to
come forward with a Response; therefore, the Panel presumes that Respondent has
no rights or legitimate interests in the <trainingconsultants.com>
domain name. See Do The Hustle,
LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once
Complainant asserts that Respondent has no rights or legitimate interests in
respect of the domain, the burden shifts to Respondent to provide credible
evidence that substantiates its claim of rights and legitimate interests in the
domain name).
Furthermore, in the absence of a
Response, the Panel accepts Complainant’s allegations as true and will draw all
reasonable inferences in Complainant’s favor.
See 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”); see also
Vertical Solutions Mgmt., Inc. v.
webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to
respond allows all reasonable inferences of fact in the allegations of
Complainant to be deemed true).
Respondent has not challenged the
Complaint and Complainant points out that Respondent is in the business of
selling domain name registrations that have a perceived value. Complainant notes: “Respondent has
registered over 6,000 domain names and has sold many of said domain names for
between $488.00 and $35,000.00 each.” The
value of the <trainingconsultants.com>
domain name is enhanced by Complainant’s established interest in the TRAINING
CONSULTANTS mark. Complainant’s
allegation that Respondent registered the <trainingconsultants.com>
domain name with no intention to use it in any manner other than to seek to
profit from its value has not been challenged.
Such use does not constitute a bona fide offering of goods or
services. Since Respondent intends to
profit from sale of the domain name registration rights for <trainingconsultants.com>,
Respondent is not using the domain name for a noncommercial or fair use. Therefore, Respondent lacks rights or
legitimate interests in the subject domain name under to Policy ¶¶ 4(c)(i) and
(iii). See Hewlett-Packard Co. v. High Perf. Networks, Inc., FA 95083 (Nat.
Arb. Forum July 31, 2000) (finding no rights or legitimate interests where
Respondent registered the domain name with the intention of selling it); see
also J. Paul Getty Trust v. Domain 4
Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or
legitimate interests do not exist when one has made no use of the websites that
are located at the domain names at issue, other than to sell the domain names
for profit).
No evidence suggests that Respondent’s
common identity is <trainingconsultants.com>. Respondent’s WHOIS information contains the
message “buy this domain” and is followed by the name “RareNames.” This indicates that Respondent operates
under a business name other than the <trainingconsultants.com>
domain name itself and could not possibly be commonly known by one of
Respondent’s many cataloged domain names.
Therefore, Respondent has no rights or legitimate interests in the <trainingconsultants.com> domain
name pursuant to Policy ¶ 4(c)(ii). See
Broadcom Corp. v. Intellifone Corp.,
FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding that Respondent has no rights
or legitimate interests because Respondent is not commonly known by the
disputed domain name and is not using the domain name in connection with a
legitimate or fair use).
Accordingly, the Panel finds that
Respondent has no rights or legitimate interests in the <trainingconsultants.com> domain name; thus, Policy ¶
4(a)(ii) has been satisfied.
Upon registering the <trainingconsultants.com> domain name, Respondent immediately
offered the registration rights for sale for $3,688. Hence, it was Respondent’s clear intention to profit from the
value associated with the <trainingconsultants.com>
domain name. Complainant notified
Respondent of its valuable interest in the TRAINING CONSULTANTS mark and
Respondent temporarily discounted the asking price for the subject domain
name. However, Complainant notes that
the price was still in excess of Respondent’s out-of-pocket costs associated
with the subject domain name. After
offering a discount, Respondent raised the asking price back up to $3,688. These facts permit the finding that
Respondent is motivated by the desire to profit from the value associated with
the <trainingconsultants.com>
domain name, which Complainant generated through many years of commercial use
of the TRAINING CONSULTANTS mark.
Therefore, Respondent’s actions constitute bad faith registration and
use under Policy ¶ 4(b)(i). See World Wrestling Fed’n Entmt., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000)
(finding that Respondent used the domain name in bad faith because he offered
to sell the domain name for valuable consideration in excess of any out of
pocket costs); see also Nabisco
Brands Co. v. Patron Group, D2000-0032 (WIPO Feb. 23, 2000) (finding that
Respondent registered and used the domain names to profit where Respondent
offered to sell the domain names for $2,300 per name).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
shall be hereby GRANTED.
Accordingly, it is Ordered that the
domain name <trainingconsultants.com>
be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks
Johnson, Panelist
Dated: December 17, 2002
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