Cricket Communications, Inc. v. Venkateshwara Distributor Private Limited c/o Caas Serviced Office Solutions
Claim Number: FA0910001290435
Complainant is Cricket
Communications, Inc. (“Complainant”), represented by Lisa M. Martens, of Fish & Richardson P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cricketcommunication.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 20, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 22, 2009.
On October 22, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <cricketcommunication.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the names. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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 26, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 16, 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@cricketcommunication.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 19, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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 <cricketcommunication.com> domain name is confusingly similar to Complainant’s CRICKET mark.
2. Respondent does not have any rights or legitimate interests in the <cricketcommunication.com> domain name.
3. Respondent registered and used the <cricketcommunication.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cricket Communications, Inc., is a telecommunications company providing communications solutions. Complainant has operated under its CRICKET mark since 1999. Complainant sells mobile telecommunications services through its <cricketcommunications.com> domain name. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its CRICKET mark (e.g., Reg. No. 2,359,369 issued June 20, 2000).
Respondent registered the <cricketcommunication.com> domain name on August 22, 2000). The disputed domain name resolves to a website featuring hyperlinks to Complainant, Complainant’s competitors, and third-parties unrelated to Complainant.
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 contends it has established rights in the
CRICKET mark. Previous panels have found
that trademark registration with a federal trademark authority is sufficient to
establish rights in a mark.
Complainant alleges Respondent’s <cricketcommunication.com> domain name is confusingly similar to Complainant’s CRICKET mark. The disputed domain name includes Complainant’s entire mark and adds the descriptive term “communication,” which describes Complainant’s telecommunications services business, and the generic top-level domain (“gTLD”) “.com.” The Panel finds the addition of a descriptive term and a gTLD is insufficient to adequately distinguish the disputed domain name from Complainant’s mark. See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel finds Respondent’s <cricketcommunication.com> domain name is confusingly similar to Complainant’s CRICKET mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <cricketcommunication.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <cricketcommunication.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Respondent fails to provide proof Respondent is commonly known by the <cricketcommunication.com> domain name. The Panel finds nothing in the record providing evidence that Respondent is commonly known by the disputed domain name. Complainant asserts that Respondent is not authorized to use the CRICKET mark. The WHOIS information identifies Respondent as “Venkateshwara Distributor Private Limited c/o Caas Serviced Office Solutions.” Therefore, the Panel finds Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also 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).
Respondent is using the <cricketcommunication.com> domain name to resolve to a website featuring
hyperlinks to Complainant, Complainant’s competitors in the telecommunications
services industry, and unrelated third-parties.
Respondent likely receives click-through fees from the hyperlinks. The Panel finds this use of the confusingly
similar disputed domain name is not a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use of the domain name under Policy ¶
4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc.,
FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to
display a list of hyperlinks, some of which advertise Complainant and its
competitors’ products. The Panel finds
that this use of the disputed domain name 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 also ALPITOUR S.p.A. v. Albloushi, FA 888651
(Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of
rights and legitimate interests in the <bravoclub.com> domain name
because the respondent was merely using the domain name to operate a website
containing links to various competing commercial websites, which the panel did
not find to be a use in connection with a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use
pursuant to 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
Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <cricketcommunication.com> domain name resolves to a website featuring a directory of hyperlinks resolving to Complainant and Complainant’s competitors in the telecommunications services industry. Internet users interested in purchasing telecommunications services from Complainant, may instead purchase telecommunications services from a competitor of Complainant because of Respondent’s use of a confusingly similar disputed domain name. The Panel finds Respondent’s use of the disputed domain name disrupts Complainant’s telecommunications services business, which constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
The Panel infers
Respondent receives click-through fees from the links relating to Complainant’s
telecommunications services competitors and the unrelated third-parties. Internet users may become confused as to
Complainant’s affiliation and sponsorship of the aforementioned hyperlinks and
website resolving from the disputed domain name. The Panel finds Respondent’s receipt of
click-through fees constitutes bad faith registration and use under Policy ¶
4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb.
Forum July 18, 2006) (finding that the respondent engaged in bad faith
registration and use by using a domain name that was confusingly similar to the
complainant’s mark to offer links to third-party websites that offered services
similar to those offered by the complainant); see also Univ. 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).”).
The Panel finds 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 <cricketcommunication.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 2, 2009
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