Stellar Private Cable Systems, Inc. v. Dreamseller Inc - In Stealth Mode and DomainManager, J.Williams
Claim Number: FA0911001294718
Complainant is Stellar Private Cable Systems, Inc. (“Complainant”), represented by Carrie L. Kiedrowski, of Jones Day, Georgia, USA. Respondent is Dreamseller Inc - In Stealth Mode and DomainManager, J.Williams (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <seniortv.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 13, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 16, 2009.
On November 16, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <seniortv.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 November 20, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 10, 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@seniortv.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 17, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <seniortv.com> domain name is identical to Complainant’s SENIORTV mark.
2. Respondent does not have any rights or legitimate interests in the <seniortv.com> domain name.
3. Respondent registered and used the <seniortv.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Stellar Private Cable Systems, Inc., specializes in providing private cable service to individual consumers as well as long-term care and senior community facilities. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the SENIORTV mark (e.g., Reg. No. 2,121,445 issued December 16, 1997).
Respondent registered the <seniortv.com> domain name on March 27, 2004. Respondent’s disputed domain name resolves to a blank webpage.
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 SENIORTV mark for purposes of Policy ¶ 4(a)(i) through its trademark
registrations with the USPTO. See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that the
complainant had sufficiently established rights in the SKUNK WORKS mark through
its registration of the mark with the USPTO); see also Clear!Blue
Holdings, L.L.C. v. NaviSite, Inc., FA 888071 (Nat. Arb. Forum Mar. 5,
2007) (“The Panel finds that Complainant has established trademark rights in
the CLEAR BLUE marks through introduction of the certificates for its U.S.
registration for those trademarks. The
U.S. Trademark Act is clear that the certificate of registration on the
Principal Register, as here, is prima
facie evidence of the validity of the registered mark and the registrant's
exclusive right to use the mark in commerce in on or in connection with the
goods specified in the registration.”).
Respondent’s <seniortv.com> domain name is identical to Complainant’s SENIORTV mark
pursuant to Policy ¶ 4(a)(i).
Respondent’s disputed domain name contains Complainant’s mark in its
entirety and adds the generic top-level domain (“gTLD”) “.com.” The addition
of a gTLD does not differentiate a domain name from an incorporated mark in any
significant way because every domain name must contain a gTLD. Therefore, the Panel finds that Respondent’s
disputed domain name is not sufficiently distinguished from Complainant’s mark
pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti,
D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the
complainant’s mark because the generic top-level domain (gTLD) “.com” after the
name POMELLATO is not relevant); see also Busy Body, Inc. v. Fitness Outlet Inc.,
D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level
domain (gTLD) name ‘.com’ is . . . without legal
significance since use of a gTLD is required of domain name registrants . . .
."). Therefore, Respondent’s <seniortv.com> domain name is identical to Complainant’s SENIORTV mark
pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and legitimate interests in the disputed domain name. When Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that, in this case, Complainant has established a prima facie case. Respondent has failed to submit a Response to these proceedings. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”).
Complainant contends that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). The relevant WHOIS information identifies the registrant of the disputed domain name as “Dreamseller Inc – In Stealth Mode c/o DomainManager, J. Williams” and there is no evidence in the record to suggest that Respondent is otherwise commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent has failed to make an active use of the disputed domain name. There is no evidence on record that Respondent has used or intends to use the disputed domain name in any manner. As a result, the Panel finds that Respondent has not made a bona fide offering of good or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the respondent is not commonly known by the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel concludes that the scenarios listed under Policy ¶ 4(b) are not exclusive, and that it may consider additional circumstances in determining whether or not Respondent registered and is using the disputed domain name in bad faith. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”).
Respondent’s disputed domain
name resolves to only a blank page.
Respondent registered the disputed domain name on March 27, 2004 and
has not made an active use of the disputed domain name. The Panel finds that Respondent’s
inactive use of the disputed domain name constitutes bad faith
registration and use under Policy ¶ 4(a)(iii).
See DCI S.A. v. Link Commercial Corp.,
D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to
make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii)
of the Policy); see also Pirelli & C. S.p.A. v. Tabriz, FA 921798
(Nat. Arb. Forum Apr. 12, 2007) (holding that non-use of a confusingly similar
domain name for over seven months constitutes bad faith registration and use).
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 <seniortv.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 31, 2009
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