Sazze, Inc. v. Domain Admin c/o Acceas Partners LLC
Claim Number: FA1006001328012
Complainant is Sazze, Inc. (“Complainant”), represented by Shannon
Woods, of Sazze, Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dealsplus.com>, registered with Moniker Online Services, Inc.
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 2, 2010.
On June 4, 2010, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <dealsplus.com> domain name is registered with Moniker Online Services, Inc. and that the Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 June 8, 2010, the Forum served the Complaint and all Annexes, including a written Notice of the Complaint, setting a deadline of June 28, 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 June 8, 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, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on June 28, 2010.
Complainant submitted an Additional Submission that was received and determined to be in compliance with Forum Supplemental Rule 7 on July 2, 2010.
On July 13, 2010, pursuant to Complainant’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant is Sazze Inc. and it owns a trademark called “DealsPlus” which was registered on October 14, 2008 by the United State Patent and Trademark Office for the purpose of “hosting an online community website featuring shopping tips coupons and shopping related questions”. Said website is known under the domain <DealsPl.us> and the mark DEALSPLUS was first used May 1, 2006.
Complainant states that Respondent’s domain name is identical to Complainant’s DEALSPLUS mark because the disputed domain name contains the mark in its entirety (and the addition of “.com” to it is irrelevant).
Complainant contends that Respondent has no rights or legitimate interests in respect of the domain name because Respondent never made a bona fide use of it, and Respondent’s website only links to other websites independent from Respondent’s. Complainant further contends that Respondent has no license from, or agreement with, Complainant to use its DEALSPLUS mark.
Complainant asserts that Respondent’s domain name has been registered and used in bad faith because Complainant started using the trademark two years before Respondent’s registration, and Complainant also filed for its trademark five months before the said mark was granted. Complainant further contends that Respondent has as its purpose, the selling, renting or transferring of the domain name to Complainant because Complainant received an email stating that the <dealsplus.com> domain name was for sale. The disputed website offers links to goods similar to those that Complainant sells, and users could be easily confused and led to believe that the parties to this proceeding have an agreement to use Complainant’s trademark.
Respondent contends that it is unaware of Complainant’s prior mark and also unaware when the term “DealsPl.us” was first used by Complainant.
Respondent contends that its domain name is not identical to Complainant’s trademark because Respondent’s domain name does not capitalize the letters “D” and “P” and because “DealsPlus” is a common term.
Respondent argues that Respondent uses the disputed domain name to “provide interested consumers with access to, among other resources, valuable online coupons, grocery coupons, laptops, lcd televisions, cellular phones, and laptop computers”. In no way is Respondent using the domain name to divert internet users to ad space.
Respondent contends that it is not using Complainant’s DEALSPLUStrademark and that Respondent’s website and Complainant’s trademark are distinguishable. Respondent also contends that Complainant has not established rights or legitimate interests in the domain name <dealsplus.com>.
In addition, Respondent contends that it has not acted in bad faith, inter alia, for the following reasons:
· The domain name was registered in 1999 which predates Complainant’s claim of first use.
· The use of <dealsplus.com>, if considered a trademark, predates Complainant’s use of its mark and therefore establishes superior rights in said mark.
· If <dealsplus.com> is not considered a mark then it cannot be considered identical to Complainant’s mark.
Respondent further contends that Respondent did not acquire the domain name in order to transfer it. Respondent denies that it sent, or caused to be sent, an email to sell the domain name; Respondent did not acquire the domain name until two days after Complainant received said email. The originator of the alleged email was Tom Baron, alias of someone known to offer to sell domain names to which he does not own the rights. Respondent contends that Respondent and Tom Baron are not associated. Respondent adds that it has never offered to sell, nor does it intend to offer for sale, the domain name.
C. Additional Submissions
Complainant contends that having a name different from the business is irrelevant in this case.
Complainant asserts that the domain name, <dealsplus.com>, uses Complainant’s trademark in its entirety with no additions and that Respondent has not created a distinguishing use because it offers the same services as Complainant’s trademark; these services are only offered as links to outside sites instead of providing a direct service.
Complainant claims that Respondent contradicts its own arguments. On the one hand Respondent concedes that the domain name <dealsplus.com>is used for the same purpose as Complainant’s trademark, while on the other hand Respondent alleges that “Respondent and Complainant do not compete in any way with each other for the same or similar customers in the same or similar markets”.
Complainant contends that Respondent is using the domain <dealsplus.com> to misdirect internet users to other websites with no connection to Respondent.
Additionally, Complainant argues that the domain name was not used until after the Complainant filed for the trademark. Further, that it was not until the Respondent acquired the domain name that the site changed to compete in the same field as Complainant’s mark.
FINDINGS AND DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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 failed to meet the burden of proof of bad faith registration under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
The Panel further finds that Complainant has failed to prove that Respondent has engaged in any conduct that would constitute bad faith registration pursuant to Policy ¶ 4(a)(iii). See Societe des Produits Nestle S.A. v. Pro Fiducia Treuhand AG, D2001-0916 (WIPO Oct. 12, 2001) (finding that where the respondent has not attempted to sell the domain name for profit, has not engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks, is not a competitor of the complainant seeking to disrupt the complainant's business, and is not using the domain name to divert Internet users for commercial gain, lack of bona fide use on its own is insufficient to establish bad faith); see also Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish UDRP ¶ 4(a)(iii)).
Respondent alleges that Complainant’s argument of Respondent’s bad faith as a result of an offer to sell the <dealsplus.com> domain name carries no weight because there is no evidence indicating that the offer was made by or on behalf of Respondent. Respondent asserts that the email containing the offer to sell received by Complainant was sent by a “Tom Baron,” an individual that has no connection or affiliation with Respondent. Respondent further argues that this individual is known to WIPO and other Internet users as being someone who fraudulently offers to sell domain names which he does not own at high prices in order to make a profit. Respondent contends that it has never offered the disputed domain name for sale and has no intention to do so.
The Panel finds that Claimant
has not provided any proof
The Panel finds that Claimant has failed to show that Respondent registered the domain name in bad faith under Policy¶ 4(a)(iii) and ¶ 4(b).
Because Complainant has failed to establish the requirements of Policy ¶ 4(a)(iii) it is not necessary for the Panel to consider the other two issues of the Policy (Identical and/or Confusingly Similar and Rights or Legitimate Interests).
Complainant has not satisfied the exigencies under the Policy; consequently the Panel concludes that the domain name transfer to the Complainant shall be DENIED.
David A. Einhorn, Panelist
Terry F. Peppard,
Dated: July 26, 2010
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