Interbond Corporation of
Claim Number: FA1004001320919
Complainant is Interbond
Corporation of America d/b/a Brandsmart
U.S.A. (“Complainant”), represented by Scott
R. Austin, of Roetzel & Andress, LPA,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brandsmart101.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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 23, 2010.
On April 25, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <brandsmart101.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 May 4, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 24, 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 firstname.lastname@example.org. Also on May 4, 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 May 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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" 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:
<brandsmart101.com> domain name is identical/confusingly similar
to Complainant’s BRANDSMART
2. Respondent does not have any rights or legitimate interests in the <brandsmart101.com> domain name.
3. Respondent registered and used the <brandsmart101.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Interbond Corporation of
Respondent, Credit Hour, Inc., registered the <brandsmart101.com> domain name on June 19, 2009. The disputed domain name resolves to a parked website that features links to Complainant’s website as well as links to third-party websites, some of which directly compete with Complainant’s business.
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 asserts rights in the BRANDSMART U.S.A mark through its registrations of the mark with the USPTO (e.g., Reg. No. 1,754,384 registered on February 23, 1993). The Panel finds these registrations sufficiently establish Complainant’s rights in the BRANDSMART U.S.A mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Complainant claims Respondent’s disputed <brandsmart101.com>
domain name is confusingly similar to its BRANDSMART
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Policy ¶ 4(a)(ii) requires Complainant to first establish a prima facie case showing Respondent lacks rights or legitimate interests in the disputed <brandsmart101.com> domain name. The burden then shifts to Respondent to show it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests. 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 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”); see also 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.”). Despite Respondent’s lack of response, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant argues that it is not affiliated with Respondent nor has it given Respondent permission to use its mark in a domain name. Furthermore, the WHOIS information lists the Registrant as “Credit Hour, Inc.” Without evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to 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 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).
Complainant also states that Respondent’s <brandsmart101.com>
domain name resolves to a parked website that features links to third-party
websites. Respondent presumably profits
from this use of the disputed domain name through the receipt of click-through
fees. Therefore, the Panel finds Respondent’s use of a parked website with
third-party links is not bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use according to Policy ¶ 4(c)(iii). See St. Farm
Mutual Auto. Insr.
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant claims that Respondent uses <brandsmart101.com>
as a parked website to provide links to third-party websites, including
links to Complainant’s competitors. The
Panel agrees and finds Respondent’s use of the parked domain name to redirect
Internet users to a website that lists links to third-party websites disrupts
Complainant’s business and constitutes registration and use in bad faith
pursuant to Policy ¶ 4(b)(iii). See Am. Airlines, Inc. v.
Complainant also argues that Respondent is using the
disputed domain name to intentionally attract, for commercial gain, Internet
users to the parked website by creating confusion as to Complainant’s
sponsorship and affiliation with the disputed domain name. As previously discussed, Respondent’s
disputed domain name is confusingly similar to Complainant’s BRANDSMART
The Panel finds 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 <brandsmart101.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: June 9, 2010
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