Corbeau
Claim Number: FA0908001279722
Complainant is Corbeau USA LLC (“Complainant”), represented by Brent
T. Winder, of Jones Waldo Holbrook & McDonough PC,
REGISTRAR
The domain name at issue is <corbeauseats.com>, registered with Lead Networks Domains Pvt. Ltd.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 25, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 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@corbeauseats.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <corbeauseats.com> domain name is identical to Complainant’s CORBEAU SEATS mark.
2. Respondent does not have any rights or legitimate interests in the <corbeauseats.com> domain name.
3. Respondent registered and used the <corbeauseats.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Corbeau USA LLC, has used its CORBEAU SEATS
mark in connection with its offering of automobile seats and related
accessories continuously in commerce for 26 years. Complainant has registered its CORBEAU SEATS
mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No.
3,482,753 issued
Respondent, Technology
Services Limited., registered the <corbeauseats.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 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 submitted evidence of its registration of
the CORBEAU SEATS mark with the USPTO (Reg. No. 3,482,753 issued
Respondent’s <corbeauseats.com> domain name
contains Complainant’s CORBEAU SEATS mark in its entirety while omitting the
space in the mark and adding the generic top-level domain “.com.” Because such changes are deemed irrelevant
under the Policy, the Panel finds that the disputed domain name is identical to
the mark under Policy ¶ 4(a)(i). See George Weston Bakeries Inc. v.
McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that eliminating the
space between terms of a mark still rendered the <gwbakeries.mobi> domain
name identical to the complainant’s GW BAKERIES mark); see also Hannover
Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant has set forth a sufficient prima facie case, Respondent bears the burden of demonstrating that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); 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 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.”).
No evidence has been presented that contradicts Complainant’s
argument that Respondent is not permitted to utilize Complainant’s mark in any
form. Moreover, the WHOIS listing
identifies Respondent only as “Technology Services Limited.” The Panel therefore finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See 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); see also
Respondent is using the disputed domain name to resolve to a website that displays links and advertisements for a variety of third parties, including Complainant’s commercial competitors. The Panel infers that Respondent profits from the receipt of click-through fees, and therefore finds that this does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See 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 Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The identical disputed domain name is being used to present Internet users with competitive click-through advertisements, which present a clear indication that Respondent intended to disrupt Complainant’s business operations. This is sufficient evidence for the Panel to find that Respondent engaged in 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 Policy ¶ 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Additionally, that Respondent has utilized the disputed
domain name, which was registered on October 2, 2007, for commercial reasons by
displaying competitive click-through advertisements demonstrates Respondent’s
creation of a likelihood of confusion as to the source, sponsorship,
affiliation, or endorsement of the disputed domain name and resolving website. The Panel therefore finds that Respondent has
engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum
June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv)
where the respondent was diverting Internet users searching for the complainant
to its own website and likely profiting); see
also University of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb.
Forum Mar. 21, 2006) (“Respondent is
using the disputed domain name to operate a website which features links to
competing and non-competing commercial websites from which Respondent
presumably receives referral fees. Such
use for Respondent’s own commercial gain is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iv).”).
Furthermore, the Panel finds that Respondent registered and used the disputed domain name in bad faith because it is evident from Respondent’s choice of the disputed domain name and the content on the resolving website that Respondent had actual knowledge of Complainant’s rights in the CORBEAU SEATS mark. Respondent’s disputed domain name contains Complainant’s mark in its entirety, including the term that describes Complainant’s primary product. The website resolving from the disputed domain name contains links to direct competitors of Complainant’s business. The Panel does not consider this a coincidence, but rather finds that Respondent’s actions evidence its actual knowledge of Complainant’s mark and further find Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (“Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”)
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <corbeauseats.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 30, 2009
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