Associated Content Inc. v. Jiri Capcuch
Claim Number: FA0908001281913
Complainant is Associated Content,
Inc. (“Complainant”),
represented by Ian V. O'Neill, of Holland & Hart LLP,
REGISTRAR
The domain name at issue is <asssociatedcontent.com>, registered with Go China Domains, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 27, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 28, 2009.
On
On September 3, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 23, 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@asssociatedcontent.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 <asssociatedcontent.com> domain name is confusingly similar to Complainant’s ASSOCIATED CONTENT mark.
2. Respondent does not have any rights or legitimate interests in the <asssociatedcontent.com> domain name.
3. Respondent registered and used the <asssociatedcontent.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant operates an online publication platform,
enabling independent writers to publish their original content and generate
income. Complainant promotes its
services under the ASSOCIATED CONTENT mark, which Complainant registered with
the United States Patent and Trademark Office (“USPTO”) on
Respondent registered the <asssociatedcontent.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.
The Panel finds that Complainant has established rights in
the ASSOCIATED CONTENT mark for purposes of Policy ¶ 4(a)(i) through its
trademark registration with the USPTO (Reg. No. 3,376,005 issued January 29,
2008). See Expedia,
Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s]
mark is registered with the USPTO, [the] complainant has met the requirements
of Policy ¶ 4(a)(i).”); see also U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO
has made a determination that a mark is registrable, by so issuing a
registration, as indeed was the case here, an ICANN panel is not empowered to
nor should it disturb that determination.”).
Complainant contends that
Respondent’s <asssociatedcontent.com>
domain name is confusingly similar to its ASSOCIATED
CONTENT mark.
The disputed domain name differs from Complainant’s mark in three ways:
(1) the space has been removed from the mark; (2) a letter “s” has been added
to the mark; and (3) the generic top-level domain (“gTLD”) “.com” has been
added to the end of the mark. The Panel finds that under Policy ¶ 4(a)(i), neither removing a space nor adding an extra letter
renders the domain name different from the mark. See Classic Metal Roofs, LLC v. Interlock
Indus., Ltd., FA 724554
(Nat. Arb. Forum Aug. 1, 2006) (concluding that the
<classicmetalroofing.com> domain name was confusingly similar to the
complainant’s CLASSIC METAL ROOFS mark because changing the final term of the
mark from “roofs” to “roofing” was a minor alteration and did not sufficiently
distinguish the domain name from the mark);
see also Myspace, Inc. v. Kang, FA 672160
(Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has 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 has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Because 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 chooses
to examine the record to determine whether Respondent has any
rights or legitimate interests pursuant to the factors outlined in Policy
¶ 4(c). See
Complainant contends that Respondent is not commonly known
by the <asssociatedcontent.com>
domain name, nor has it ever been the owner or licensee of the ASSOCIATED
CONTENT mark. Respondent has been
identified as “Jiri Capcuch,” and 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 and is not known by any variant of the ASSOCIATED
CONTENT mark, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See America W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
Respondent is using the <asssociatedcontent.com> domain name to host a website that links to third-party websites featuring adult-oriented content. In accordance with previous panels, the Panel finds that this use by Respondent of the <asssociatedcontent.com> domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Am. Online, Inc. v. Boch, FA 209902 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent uses <aol-x.com> in connection with adult-oriented material, which is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the domain name, pursuant to Policy ¶¶ 4(c)(i) [and] (iii).”); see also InnoTown AS v. Forest, D2003-0718 (WIPO Oct. 27, 2003) (because there was “no immediate or apparent connection between the name selected by the Respondent and its web site offering links to various adult-oriented web sites” the panel inferred that the respondent registered the domain name to “secure its residual traffic” and held that this activity was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends, and the Panel presumes, that Respondent
gains commercially from the diversion of Internet users to the third-party
websites, as the Panel also presumes that Respondent is collecting
“click-through” fees from the third-parties.
The Panel finds that Respondent is intentionally using the disputed
domain name for commercial gain through a likelihood of confusion with
Complainant’s mark, and so, pursuant to Policy ¶ 4(b)(iv),
this use is also evidence of Respondent’s registration and use in bad faith. See
Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Nat. Arb. Forum Oct. 6, 2003) (“Respondent
has attempted to commercially benefit from the misleading <qwestwirless.com>
domain name by linking the domain name to adult oriented websites, gambling
websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit
from the misleading domain name is evidence of bad faith pursuant to Policy ¶
4(b)(iv).”); see also Youtv,
Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum
Complainant also contends that
Respondent’s association of the disputed domain name, registered on
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 <asssociatedcontent.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: October 12, 2009
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