Al-Marah Arabians v. Maripon Management, Inc.
Claim Number: FA1002001309750
Complainant is Al-Marah Arabians (“Complainant”), represented by Sam
Trejo, of Xcentech Computers LLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <al-marah.com>, registered with GoDaddy.com, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National
Arbitration Forum electronically on
On
On March
5, 2010, the Forum served the Complaint and all Annexes, including a
Written Notice of the Complaint, setting a deadline of March 25, 2010 by which
Respondent could file a Response to the Complaint, via e-mail to all entities
and persons listed on Respondent’s registration as technical, administrative,
and billing contacts, and to postmaster@al-marah.com. Also on
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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <al-marah.com> domain name is confusingly similar to Complainant’s AL-MARAH ARABIANS mark.
2. Respondent does not have any rights or legitimate interests in the <al-marah.com> domain name.
3. Respondent registered and used the <al-marah.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Al-Marah Arabians, is an
Respondent took over registration of the <al-marah.com> domain name on or
around
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 owns a trademark registration with the USPTO for
its AL-MARAH ARABIANS mark (Reg. No. 2,368,125 issued on
Complainant argues that Respondent’s <al-marah.com> domain name is
confusingly similar to its AL-MARAH ARABIANS mark. Complainant contends that the disputed domain
name contains the portion of its mark that can be trademarked and simply adds
the generic top level domain (“gTLD”) “.com.”
The Panel finds that the disputed domain name is confusingly similar to
Complainant’s mark under Policy ¶ 4(a)(i) because it
merely deletes the descriptive word “Arabians” from the mark and adds the gTLD
“.com.” See Tesco Pers. Fin. Ltd. v. Domain Mgmt.
Servs., FA 877982 (Nat. Arb.
Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to
Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive
term ‘personal.’”); see also Asprey &
Garrard Ltd v. Canlan Computing, D2000-1262
(WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is
confusingly similar to the complainant’s ASPREY & GARRARD and MISS ASPREY
marks); see also Reese v. Morgan, FA
917029 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights
or legitimate interests in the disputed domain name. Complainant is required to make a prima facie case in support of these
allegations. Once the Complainant has
produced a prima facie case the
burden shifts to Respondent to show it does have a right or legitimate interest
in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum
Apr. 26, 2006) (finding the “complainant must first make a prima facie case
that [the] respondent lacks rights and legitimate interests in the disputed
domain names under Policy ¶ 4(a)(ii), and then the
burden shifts to [the] respondent to show it does have rights or legitimate
interests.”); 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). The Panel finds that Complainant has
established a prima facie case. Due to the Respondent’s failure to respond to
these proceedings the Panel may assume Respondent does not have any right or
legitimate interest in the disputed domain name. See Am.
Online, Inc. v. AOL Int'l, D2000-0654 (WIPO
Complainant argues that Respondent
is not commonly known by the disputed domain name, nor has Complainant granted
Respondent permission to use its mark. The WHOIS information displays, “Admin, Domain Support@internet-guide.biz;
Maripon Management, Inc.” as the registrant of the <al-marah.com>
domain name and Respondent does not offer evidence of it being commonly known
by the disputed domain name. Therefore, the Panel finds that Respondent
lacks rights and legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(c)(ii).
See 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); see also 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).
Complainant further
argues that Respondent’s use of the disputed domain does not amount to a bona
fide offering of goods or services.
Complainant submits evidence that Respondent’s current use of the
website is to display Respondents e-mail address and solicit offers for the
sale of the domain name as if Respondent was Complainant. The Panel finds that Respondent’s use of the
confusingly similar domain name to pass itself off as Complainant in order to
sell the disputed domain name is not in connection with a bona fide
offering of goods or services under Policy ¶ 4(c)(i) or a noncommercial or fair
use under Policy ¶ 4(c)(iii).
Complainant presents further evidence that Respondent lacks
rights and legitimate interests in the disputed domain name. Complainant contends that it has owned the <al-marah.com> domain name since 1997
and that it inadvertently let the registration lapse, upon which Respondent
purchased it. Complainant further
contends that Respondent, upon receiving correspondence from Complainant
responded that it would be willing to sell the disputed domain name back to
Complainant for $5,600. The Panel finds
that Respondent lacks rights and legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(a)(ii). See
RH-Interactive Jobfinance v. Mooburi Servs., FA 137041 (Nat. Arb. Forum
Jan. 16, 2003) (“Complainant’s prior registration of the domain name, coupled
with Respondent’s failure to respond to this dispute, is evidence that
Respondent has no rights or legitimate interests in the domain name pursuant to
Policy 4(a)(ii).”); see also
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant argues that Respondent’s purpose of purchasing
the disputed domain name was to sell it.
To support this Complainant submits a screen shot of the current website
that resolves from the disputed domain name as well as an e-mail from
Respondent to Complainant stating that it would sell the disputed domain name
to Complainant for $5,600. The Panel
finds that Respondent’s use is evidence of bad faith registration and use under
Policy ¶ 4(b)(i) because Respondent registered the disputed domain shortly
after Complainant’s registration had lapsed, and quickly offered the disputed
domain name for sale to Complainant. See Bank of
Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb.
Forum
Complainant also argues that since it held the <al-marah.com> domain name from 1997
until November 2009 that Respondent’s registration of the disputed domain name
was made in bad faith. The Panel finds
that Respondent’s registration of the disputed domain name shortly after Complainant’s
lapse of registration, along with its offer
to sell the domain name openly and directly to Complainant is further evidence
of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Florists’ Transworld Delivery, Inc. v. Domain
Strategy, Inc., FA 113974 (Nat. Arb. Forum
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 <al-marah.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, N.Y. (Ret.)
Dated: April 14, 2010
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