Kevin Richardson v. POLING SZETO a/k/a POLINGSZETO
Claim Number: FA0912001299488
Complainant is Kevin
Richardson (“Complainant”), represented by Thomas David Ruth, of Lassiter, Tidwell, Davis, Keller &
Hogan, PLLC and Julia R. McGuffey
of Middleton Reutlinger, Kentucky,
USA. Respondent is POLING SZETO a/k/a
POLINGSZETO (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <kevinrichardson.com>, registered with Namesalacarte.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 16, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 17, 2009.
On December 31, 2009, Namesalacarte confirmed by e-mail to the National Arbitration Forum that the <kevinrichardson.com> domain name is registered with Namesalacarte and that Respondent is the current registrant of the name. Namesalacarte has verified that Respondent is bound by the Namesalacarte 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 January 4, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 24, 2010 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@kevinrichardson.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 1, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <kevinrichardson.com> domain name is identical to Complainant’s KEVIN RICHARDSON mark.
2. Respondent does not have any rights or legitimate interests in the <kevinrichardson.com> domain name.
3. Respondent registered and used the <kevinrichardson.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kevin Richardson, was a member of the musical
group Backstreet Boys from 1993 until 2006.
Complainant’s KEVIN RICHARDSON has been featured on goods and
merchandise relating to his music career.
Complainant has also appeared in different Broadway productions, such as
Respondent, POLING SZETO a/k/a POLINSZETO, registered the <kevinrichardson.com> domain name on September 27, 2009. The disputed domain name resolves to a website featuring third-party hyperlinks. Some of these third-parties compete with Complainant by offering products, merchandise, and tickets for shows of Complainant’s competitors in the music industry. Respondent also offers to sell the disputed domain name on the website resolving from the domain name.
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 argues the <kevinrichardson.com>
domain name is identical to Complainant’s KEVIN RICHARDSON mark. The disputed domain name removes the space
between Complainant’s mark and adds the generic
top-level domain (“gTLD”) “.com.” The
Panel finds the space between the Complainant’s mark
is impermissible in a domain name and that a gTLD is required for all domain
names. See
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <kevinrichardson.com> domain name. Once 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 pursuant to Policy ¶ 4(a)(ii). 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 disputed domain name. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Respondent has offered no evidence, and there is no evidence in the record, suggesting that Respondent is commonly known by the <kevinrichardson.com> domain name. Complainant asserts that the Respondent has no license or agreement with Complainant authorizing Respondent to use the KEVIN RICHARDSON mark, and the WHOIS information identifies domain name registrant as “POLING SZETO a/k/a POLINSZETO.” Thus, Respondent has not established rights or legitimate interests in the <kevinrichardson.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also 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).
Complainant contends that Respondent uses the <kevinrichardson.com> domain name to resolves to a website featuring links to Complainant’s musical competitors. Complainant further alleges that Respondent receives click-through fees from displaying the links to Complainant’s competitors. The Panel finds Respondent’s use of the confusingly similar <kevinrichardson.com> domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See 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 Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
Respondent’s website resolving from the <kevinrichardson.com> domain name features an offer to sell the disputed domain name. Respondent likely is attempting to sell the disputed domain name for more than Respondent’s out-of-pocket costs. The Panel finds Respondent’s attempts to sell the 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 pursuant to Policy ¶ 4(c)(iii). See Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The website resolving from Respondent’s <kevinrichardson.com>
domain name purports to offer the
disputed domain name for sale. The Panel
presumes Respondent is attempting to sell the disputed domain name for greater
than Respondent’s out-of-pocket costs.
The Panel finds Respondent’s offer to sell the disputed domain name
constitutes bad faith registration and use under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the
disputed domain name registration for sale establishes that the domain name was
registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online, Inc. v. Avrasya Yayincilik
Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad
faith where the respondent offered domain names for sale).
Respondent’s <kevinrichardson.com> domain name
resolves to a website featuring hyperlinks of Complainant’s competitors in the
music industry. Internet users,
searching for information about Complainant’s performances or products, may
instead purchase tickets to a competitor’s performance or a competitor’s
merchandise because of Respondent’s use of the confusingly similar disputed
domain name. The Panel finds this use of the <kevinrichardson.com>
domain name constitutes a disruption of Complainant’s business, which is
evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Am. Airlines, Inc. v.
The Panel presumes Respondent receives click-through fees
for the use of the confusingly similar <kevinrichardson.com>
domain name to redirect Internet users interested in Complainant’s performance
and musically related products to Complainant’s competitors through the hyperlinks
on the resolving website. Respondent is
attempting to profit by creating a likelihood of confusion as to Complainant’s
affiliation with and sponsorship of the resolving website. Therefore, the Panel finds Respondent’s use
of the <kevinrichardson.com> domain name constitutes bad faith
registration and use under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb.
Forum June 11, 2006) (holding that the respondent’s previous use of the
<bankofamericanfork.com> domain name to maintain a web directory was
evidence of bad faith because the respondent presumably commercially benefited
by receiving click-through fees for diverting Internet users to unrelated
third-party websites); see also T-Mobile USA, Inc.
v. utahhealth, FA 697821 (Nat. Arb. Forum
June 7, 2006) (holding that the registration and use of a domain name confusingly
similar to a complainant’s mark to direct Internet traffic to a commercial
“links page” in order to profit from click-through fees or other revenue
sources constitutes bad faith under Policy ¶ 4(b)(iv)).
The Panel finds the elements of Policy ¶ 4(a)(iii) have been met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kevinrichardson.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 15, 2010
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