James L. Throneburg v Ion Laurentiu Cristian
Claim Number: FA1003001315431
Complainant is James L. Throneburg (“Complainant”), represented by Brian
M. Davis,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <thorlosockssale.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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 25, 2010.
On March 28, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <thorlosockssale.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 March 30, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 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@thorlosockssale.com by email. Also on March 30, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 22, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 "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 <thorlosockssale.com> domain name is confusingly similar to Complainant’s THORLO mark.
2. Respondent does not have any rights or legitimate interests in the <thorlosockssale.com> domain name.
3. Respondent registered and used the <thorlosockssale.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, James L. Throneburg, is a distributor and seller of men’s, women’s, and children’s socks under an exclusive license with the third-party, “Thor Lo, Inc.” Complainant owns several trademark registrations with the United States Patent and Trademark Office for its THORLO mark (e.g. Reg. No. 1,119,696 issued on June 5, 1979).
Respondent, Ion Laurentiu Cristian, registered the <thorlosockssale.com> domain name on February 2, 2010. Respondent’s disputed domain name resolves to a website that purports to offer THORLO products for sale and to allow users to locate suppliers for THORLO socks. Respondent’s website resolving from the disputed domain name also displays products of Complainant’s competitors and third-party links to businesses offering those competing products under Complainant’s mark.
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
its THORLO mark under Policy ¶ 4(a)(i) through its trademark registrations with
the USPTO (e.g. Reg. No. 1,119,696
issued on June 5, 1979). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s
federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks
were adequate to establish its rights in the mark pursuant to Policy ¶
4(a)(i)); see also
Complainant argues that the <thorlosockssale.com> domain name is confusingly similar to its THORLO mark. Complainant emphasizes that the disputed domain name contains Complainant’s mark in it entirety while adding the descriptive term “socks,” the generic term “sale” and the generic top-level domain (“gTLD”) “.com.” The Panel finds that the <thorlosockssale.com> domain name is confusingly similar to Complainant’s THORLO mark under Policy ¶ 4(a)(i) where it contains Complainant’s mark entirely, while merely adding the descriptive term “socks,” which describes Complainant’s products, the generic term “sale” and the gTLD “.com.” See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); 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 that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights or legitimate interests in the <thorlosockssale.com> 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 the Respondent to show it does have rights or legitimate interests 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 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.”). The Panel finds that the Complainant has produced a prima facie case. Due to the Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the disputed domain name. The Panel will, however, examine the record to determine whether Respondent possesses rights or legitimate interests in the <thorlosockssale.com> domain name pursuant to Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond).
Complainant argues that Respondent has not been authorized to use its THORLO mark in any way, and further that Respondent is not commonly known by the disputed domain name. The WHOIS information does not indicate whether Respondent is commonly known by the <thorlosockssale.com> domain name, and Respondent does not offer any evidence to show that it is commonly known by the <thorlosockssale.com> domain name. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed 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 contends that Respondent is not using the <thorlosockssale.com> domain name in connection with a bona fide offering of goods or services, nor is Respondent making a legitimate noncommercial or fair use of the disputed domain name. Complainant argues that Respondent is using the disputed domain name to resolve to a website that offers click-through links and advertisements for Complainant’s competitors in the sock and footwear market, presumably for financial gain. The Panel finds that Respondent’s use of the disputed name to redirect Internet users to Complainant’s competitors, presumably for financial gain, does not constitute 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 Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent’s use of the confusingly
similar <thorlosockssale.com> domain
name to redirect Internet users seeking Complainant’s products to the products
of its competitors results in a loss of business for Complainant. The Panel finds that Respondent has
registered and used the disputed domain name in bad faith pursuant to Policy ¶
4(b)(iii) where it is using the confusingly similar domain name to divert
Internet users to the competitors of Complainant. See
Complainant also maintains that Respondent has engaged in
bad faith registration and use by using the <thorlosockssale.com>
domain name to operate a directory website featuring third-party
links to the competitors of Complainant.
Complainant alleges that Respondent receives referral fees for the links
it has displayed on its website, and that this type of use is made in bad
faith. The Panel finds that pursuant to
Policy ¶ 4(b)(iv) Respondent has engaged in bad faith registration and use by
attempting to intentionally attract Internet users to its website that displays
third-party links to Complainant’s competitors, presumably for financial
gain. See 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 <thorlosockssale.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: May 5, 2010
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