Great Lakes Services, LLC v. Tom
Claim Number: FA1007001333208
Complainant is Great Lakes Services, LLC (“Complainant”), represented by Lori S. Meddings, of Michael Best & Friedrich LLP, Wisconsin, USA. Respondent is Tom (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <greatwolf.net>, registered with GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LT.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 30, 2010. The Complaint was submitted in both Chinese and English languages.
On July 2, 2010, GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LT confirmed by e-mail to the National Arbitration Forum that the <greatwolf.net> domain name is registered with GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LT and that Respondent is the current registrant of the name. GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LT has verified that Respondent is bound by the GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LT 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 Chinese language Complaint and all Annexes, including a Chinese 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@greatwolf.net by e-mail. Also on July 13, 2010, the Chinese language 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 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <greatwolf.net> domain name is identical to Complainant’s GREAT WOLF mark.
2. Respondent does not have any rights or legitimate interests in the <greatwolf.net> domain name.
3. Respondent registered and used the <greatwolf.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Great Lakes
Services, LLC, operates several hospitality and indoor waterpark properties,
opening its first in 1997. Complainant
currently owns and operates twelve GREAT WOLF LODGE resorts across the United
States and Canada. Complainant owns
serveral trademark registrations for its GREAT WOLF LODGE mark with the United
States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,643,850 issued October 29, 2002). Complainant also owns a trademark
registration for its GREAT WOLF mark with the USPTO (Reg. No. 3,751,580 issued
February 23, 2010).
Respondent, Tom, registered the <greatwolf.net> domain name on April 13, 2010. Respondent’s disputed domain name resolves to a website that displays various third-party links to hospitality and recreational properties in competition with Complainant. Respondent, after being issued a cease and desist letter from Complainant, offered the disputed domain name for sale to Complainant for $1,200.
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 Respondent has established rights in
its GREAT WOLF mark under Policy ¶
4(a)(i) through its trademark registration with the USPTO. The Panel further finds that Complainant does
not need to own trademark registrations in the country where Respondent resides
to establish rights in its mark. 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 Williams-Sonoma,
Inc. v. Fees, FA 937704 (Nat. Arb.
Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has
registered its trademark in the country of the respondent’s residence).
Respondent’s <greatwolf.net> domain name is identical to Complainant’s GREAT WOLF mark under Policy ¶ 4(a)(i). The domain name contains Complainant’s entire mark, absent the space between the terms of the mark, and adds the generic top-level domain (“gTLD”) “.net.” The Panel finds that Respondent’s <greatwolf.net> domain name is identical to Complainant’s GREAT WOLF mark under Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶
4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights and legitimate interests in the <greatwolf.net> domain name pursuant to Policy ¶ 4(a)(ii). Complainant is required to produce a prima facie case in support of such allegations before the burden of proof shifts to Respondent. 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.”). The Panel finds that Complainant has submitted a prima facie case to show that Respondent lacks rights and legitimate interests in the <greatwolf.net> domain name. The Panel further finds that Respondent’s failure to respond to Complainant’s allegations allows the Panel to infer that Respondent does not possess rights or legitimate interests in the disputed domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). The Panel will continue to review the evidence on record to determine if Respondent has rights and legitimate interests in the <greatwolf.net> domain name under Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by
the <greatwolf.net> domain
name and Respondent does not own a trademark registration for the GREAT WOLF
mark or any variation thereof.
Complainant states that it has not authorized Respondent to use its
mark. The WHOIS information for the disputed
domain name identifies “Tom” as the registrant of the domain name, not similar
to the <greatwolf.net>
domain name. Therefore, the Panel finds
that Respondent is not commonly known by the disputed domain name under Policy
¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3,
2006) (finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the
WHOIS information and other evidence in the record); 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, and submits screen shot evidence to show, that Respondent is using the disputed domain names to display third-party links to hotel and recreational facilities in competition with Complainant. Respondent also displays third-party links to websites and businesses unrelated to Complainant. Complainant alleges that Respondent receives click-through fees from the businesses advertised on and linked-to from Respondent’s website. The Panel finds that this use of the disputed domain, presumably for financial gain, is not a use in connection with 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 Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); 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)).
Complainant further argues that upon receiving Complainant’s cease and desist letter that Respondent sent an e-mail communication to Complainant’s attorney asking for $1,200 to transfer the domain name in question. The Panel finds that this is further evidence that Respondent lacks rights and legitimate interests in the <greatwolf.net> domain name under Policy ¶ 4(a)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s offer to sell the domain name also provides evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the respondent demonstrated bad faith when he requested monetary compensation beyond out-of-pocket costs in exchange for the registered domain name).
Respondents <greatwolf.net> domain name resolves to a website that displays third-party links to competitors of Complainant in the hospitality and recreational property industry. Respondent’s diversion of Internet users to the websites and businesses of a complainant’s competitors is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Respondent receives click-through fees from the competing and unrelated businesses that are advertised on the website resolving from the <greatwolf.net> domain name. The Panel finds that Respondent’s registration and use of the disputed domain name to display various third-party hyperlinks, presumably for financial gain, was made in bad faith under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by 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 <greatwolf.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 17, 2010
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