Ascentive LLC v. Kentaro c/o Aekkarat Chinphumiwasana
Claim Number: FA0912001300249
Complainant is Ascentive LLC (“Complainant”), represented by Alexis
Arena,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <finallyfastcom.com>, registered with Name.com, LLC.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 22, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 23, 2009.
On December 23, 2009, Name.com, LLC confirmed by e-mail to the National Arbitration Forum that the <finallyfastcom.com> domain name is registered with Name.com, LLC and that Respondent is the current registrant of the name. Name.com, LLC has verified that Respondent is bound by the Name.com, LLC 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 December 29, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 19, 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@finallyfastcom.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 27, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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 <finallyfastcom.com> domain name is confusingly similar to Complainant’s FINALLYFAST.COM mark.
2. Respondent does not have any rights or legitimate interests in the <finallyfastcom.com> domain name.
3. Respondent registered and used the <finallyfastcom.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ascentive LLC,
develops and sells computed software products.
Complainant has offered its system performance and security products
under the FINALLYFAST.COM mark since March 2008. Complainant has registered its
FINALLYFAST.COM mark with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 3,533,775 issued November 18, 2008).
Respondent’s <finallyfastcom.com> domain name was registered on November 14, 2009. The disputed domain name resolves to a website that advertises third-parties that display Complainant’s mark and sell products of Complainant’s direct competitors.
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’s registration of the
FINALLYFAST.COM mark with the USPTO (Reg. No.
3,533,775 issued November 18, 2008) adequately demonstrates
Complainant’s rights in the mark under Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v.
Respondent’s disputed <finallyfastcom.com> domain name differs from Complainant’s FINALLYFAST.COM mark only in that the letters “com” have been added to the mark. The Panel finds the addition of extraneous letters does not diminish the resulting confusing similarity between the disputed domain anme and Complainant’s mark under Policy ¶ 4(a)(i). See L.F.P., Inc. v. Yarbrough, FA 114420 (Nat. Arb. Forum July 9, 2002) (finding that <xxxbarelylegal.com> domain name to be confusingly similar to the complainant’s BARELY LEGAL mark because the addition of “xxx” was not a distinguishing addition); see also Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that the respondent’s domain name <go2AOL.com> was confusingly similar to the complainant’s AOL mark).
The Panel finds 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. Since 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also 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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
Respondent has not supplied any evidence that it is commonly known by the disputed domain name. The registrant of record under the WHOIS information is listed as “Kentaro c/o Aekkarat Chinphumiwasana,” which bears no resemblance to 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 M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Respondent’s disputed domain name resolves to a website that
displays advertisements for Complainant’s direct competitors. The Panel finds Respondent’s use of the
disputed domain name to collect click-through fees is 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
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 Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum Sept. 30, 2003)
(“Respondent's demonstrated intent to divert Internet users seeking
Complainant's website to a website of Respondent and for Respondent's benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it
is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s disputed
domain name resolves to a website promoting Complainant’s direct competitors
through links and advertisements. The
Panel finds Respondent’s use of the disputed domain name disrupts Complainant’s
business, which is evidence of Respondent’s bad faith registration and use
under Policy ¶ 4(b)(iii). See David
The Panel presumes that Respondent is commercially
benefiting from the placement of these third-party links through the receipt of
click-through fees. Thus, the Panel
finds that Respondent’s confusingly similar disputed domain name has created a
likelihood of confusion as to Complainant’s source or affiliation with the
disputed domain name and corresponding website, which evidences Respondent’s
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 Asbury Auto. Group, Inc. v.
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 <finallyfastcom.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: February 10, 2010
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