Milwaukee Electric Tool Corp. v. Christopher Brennan
Claim Number: FA1006001330838
Complainant is Milwaukee Electric Tool Corp. (“Complainant”), represented by Lori
S. Meddings, of Michael Best & Friedrich LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <milwaukeecordlessdrills.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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 18, 2010.
On Jun 21, 2010, GODADDY.COM, INC. confirmed by e-mail to the National Arbitration Forum that the <milwaukeecordlessdrills.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 June 22, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 12, 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 22, 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 July 15, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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:
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <milwaukeecordlessdrills.com> domain name.
3. Respondent registered and used the <milwaukeecordlessdrills.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Electric Tool Corp., holds rights in the
Respondent, Christopher Brennan, registered the <milwaukeecordlessdrills.com> domain name on December 9, 2009. The disputed domain name resolves to a website displaying information about Complainant’s products and advertisements that link to third-party websites that include competitors of Complainant.
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 it has rights in the
Complainant asserts that Respondent’s disputed domain name
is confusingly similar to Complainant’s
Complainant has satisfied the first element of UDRP Policy ¶ 4(a)(i).
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facia case showing Respondent lacks rights and legitimate interests in the disputed domain name. The burden then shifts to Respondent to prove it has rights or legitimate interests in the <milwaukeecordlessdrills.com> domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); see also Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”). Although Respondent has failed to respond, the Panel will examine the record to determine whether Respondent has any rights or legitimate interests pursuant to Policy ¶ 4(c).
The WHOIS information for the <milwaukeecordlessdrills.com> domain name lists “Christopher Brennan” as the registrant, and
Complainant contends that this indicates that the Respondent is not commonly
known by the disputed domain. Respondent has not provided any other evidence to
support that it is commonly known by the disputed domain name, and Complainant
asserts that it has not given any authorization or rights to Respondent to use
Complainant claims that Respondent’s disputed domain name resolves to a website that displays information about Complainant’s cordless electric drills and links to third-party websites that include competitors of Complainant. The Panel finds that offering links to third-party websites is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and further finds that diverting business from Complainant in such a manner is not making a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a confusingly similar domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in direct competition with a complainant, does not constitute 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)).
Complainant has satisfied the second element of UDRP Policy ¶ 4(a)(ii).
Complainant alleges that Respondent’s <milwaukeecordlessdrills.com> domain
name disrupts Complainant’s business.
Complainant argues that the website resolving from Respondent’s disputed
domain name displays links to third-party website that include Complainant’s
competitors. The Panel finds that the
listing of hyperlinks to competitors of Complainant’s is a disruption of
Complainant’s business and is evidence of bad faith and registration by
Respondent under Policy ¶ 4(b)(iii). See David Hall Rare Coins v.
Complainant asserts that Respondent’s disputed domain name
prominently displays the full
Complainant has satisfied the third element of UDRP Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <milwaukeecordlessdrills.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 20, 2010
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