Fandango, Inc. v. xianbin chen / fandangocard
Claim Number: FA1006001332430
Complainant is Fandango, Inc. (“Complainant”), represented by Steven
M. Levy,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <fandangocard.com>, registered with MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE, and <fandangocard.info>, 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 June 29, 2010.
On July 1, 2010, MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE confirmed by e-mail to the National Arbitration Forum that the <fandangocard.com> domain name is registered with MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE and that Respondent is the current registrant of the name. MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE has verified that Respondent is bound by the MELBOURNE IT, LTD. d/b/a INTERNET NAMES WORLDWIDE 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 July 1, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <fandangocard.info> 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 July 13, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 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@fandangocard.com, and postmaster@fandangocard.info by e-mail. Also on July 13, 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 August 9, 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <fandangocard.com> and <fandangocard.info> domain names are confusingly similar to Complainant’s FANDANGO mark.
2. Respondent does not have any rights or legitimate interests in the <fandangocard.com> and <fandangocard.info> domain names.
3. Respondent registered and used the <fandangocard.com> and <fandangocard.info> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Fandango, Inc., is a provider of movie information that contains movie clips, trailers, celebrity interviews, fan reviews and news. Complainant further provides theater and show-time information and sells movie tickets over the internet and telephone. Complainant owns several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its FANDANGO marks (e.g., Reg. No. 2,769,579 issued September 30, 2003) as well as with the Chinese State Administration for Industry and Commerce Office (“SIPO”) (e.g., Reg. No. 1,985,568 issued April 10, 2001).
Respondent, xianbin chen c/o fandangocard, registered the <fandangocard.com> domain name on December 31, 2009 and the <fandangocard.info> domain name on January 8, 2010. Respondent’s disputed domain names resolve to a website that offers movie tickets for sale similar to Complainant’s business and website.
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 submitted sufficient
evidence to show that it has rights in the FANDANGO mark under Policy ¶ 4(a)(i)
through its multiple trademark registrations with the USPTO (e.g., Reg. No. 2,769,579 issued
September 30, 2003) and SIPO (e.g.,
Reg. No. 1,985,568 issued April 10, 2001).
See Miller Brewing
Complainant contends that the
<fandangocard.com> and <fandangocard.info>
domain names are confusingly similar to Complainant’s FANDANGO mark. Complainant argues the domain names contain
its mark entirely while adding the generic term “card” and the generic
top-level domain (“gTLD”) “.com” or “.info.”
The Panel finds that the disputed domain names are confusingly similar
to Complainant’s FANDANGO mark under Policy 4(a)(i) where the domain names
include Complainant’s mark entirely and simply add the generic term “card” and
a gTLD. See Arthur Guinness Son & Co. (
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights and legitimate interests in the disputed domain names. Complainant is required to establish a prima facie case in support of such allegations. Upon Complainant’s production of a prima facie case the burden of proof shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. See 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 Complainant has met its burden and the burden has been transferred to Respondent. Due to Respondent’s failure to respond to these proceedings, the Panel finds that it may presume the allegations made within the Complaint are true unless clearly contradicted by the evidence on record. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”). However, the Panel will evaluate the evidence on record to determine if Respondent has rights and legitimate interests in the domain names under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known
by the <fandangocard.com> and <fandangocard.info>
domain names under Policy ¶ 4(c)(ii).
The WHOIS information for the disputed domain names indicates that the
registrant is “Xinbin Chen c/o Fundangocard” or “Xianbin Chen,” neither of
which is considered by this Panel to be similar to the disputed domain
names. Therefore, the Panel finds that
Respondent is not commonly known by the disputed domain names under Policy ¶
4(c)(ii), although it appears that Respondent is commonly known by <fandangocard.info> domain name. 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 Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was
not “commonly known by” the <shantiyogaworks.com> domain name
despite listing its name as “Shanti Yoga Works” in its WHOIS contact
information because there was “no
affirmative evidence before the Panel that the respondent was ever ‘commonly
known by’ the disputed domain name prior to its registration of the disputed
domain name”).
Complainant argues that Respondent is using the disputed domain names to redirect Internet users to Respondent’s commercial website that offers movie tickets at discounted prices. The Panel finds that Respondent’s use of the disputed domain names to sell movie tickets via the Internet and in competition with Complainant is not 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). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has alleged that Respondent is using the <fandangocard.com> and <fandangocard.info> domain names to divert Internet users seeking Complainant’s movie information and ticket sales website to Respondent’s website offering competing movie ticket sales. The Panel finds that such use is evidence of Respondent’s bad faith registration and use of the domain names pursuant to Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Complainant has further alleged that Respondent registered
and is using the disputed domain names to intentionally attract Internet users
to its website for commercial gain.
Complainant argues that Respondent is selling discounted movie tickets
to Internet users by using the confusingly similar <fandangocard.com> and <fandangocard.info> domain
names. Complainant contends that such
use is evidence of bad faith registration and use. The Panel agrees and finds that Respondent’s
use of the disputed domain names to sell movie tickets to Internet users
seeking Complainant’s official website is further evidence of Respondent’s bad
faith registration and use under Policy ¶ 4(b)(iv). See
Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23,
2003) (finding that the respondent’s use of the <saflock.com> domain name
to offer goods competing with the complainant’s illustrates the respondent’s
bad faith registration and use of the domain name, evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv)); see also TM Acquisition Corp.
v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith
where the respondent used the domain name, for commercial gain, to
intentionally attract users to a direct competitor of the complainant).
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 <fandangocard.com> and <fandangocard.info> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: August 21, 2010
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