Fandango, Inc. v. Gift Card Store a/k/a Richark Jackson
Claim Number: FA1009001345842
Complainant is Fandango, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Gift Card Store a/k/a Richark Jackson (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myfandangobucks.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.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 12, 2010.
On September 13, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <myfandangobucks.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 September 17, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 7, 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@myfandangobucks.com by e-mail. Also on September 17, 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 October 21, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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:
1. As set forth more fully below, the Complainant owns certain trademarks and makes extensive use of them such that they have become well-known.
(a) Complainant Owns Its Marks Complainant is the owner of the distinctive and well known FANDANGO and FANDANGO BUCKS trademarks (the “FANDANGO Marks”). At least as early as 2000, Complainant commenced use of the FANDANGO Marks and, since that time, Complainant has continually used the FANDANGO Marks in commerce.
(b) The FANDANGO Marks Are Extensively Used, Promoted and Protected. Complainant Fandango is America's leading source for movie information and online ticket sales. Its services entertain and inform consumers with exclusive film clips, trailers, celebrity interviews, fan reviews and news. Complainant further provides theater and showtime information and sells movie tickets over the Internet and telephone for more than 16,000 screens, enabling customers to ensure ticket availability and avoid lines at the movie theater. Complainant even offers its tickets in paperless, electronic form on customers’ cell phones and other PDA devices. Complainant generates significant sales revenue through its website <fandango.com> and its telephone line 1-800-FANDANGO. Millions of customers use Complainant’s services every month to research movies and buy movie tickets.
Founded in 2000, Complainant Fandango extensively promotes its FANDANGO Marks and uses them on its websites and the sites of others such as Comcast.com and OfficeDepot.com. It also promotes its services at movie theaters and its advertisements play before movie previews at participating theater chains.
In April of 2007, Complainant was acquired by Comcast Interactive Media, a division of Fortune 100 media company Comcast Corporation (NASDAQ Symbol: CMCSA). Comcast Interactive Media develops and operates Internet businesses focused on entertainment, information and communication. Complainant has also been the subject of extensive unsolicited press coverage (e.g., The New York Times, USA Today, CNN.com, etc.).
As a result of Complainant’s long and extensive advertising, promotion and marketing efforts, the FANDANGO Marks identify and indicate the source of Complainant’s goods and services to the consuming public, and distinguish its goods and services from those of others. The FANDANGO Marks have become well-known to, and widely recognized by consumers.
Complainant’s FANDANGO Marks are aggressively protected through registration and enforcement. Amongst others, Complainant owns United States Federal Trademark Registrations for the Marks as follows:
|
Mark |
Goods and Services |
Reg. No. |
Reg. Date |
|
FANDANGO |
IC 041. US 100 101 107. G & S: Movie schedule and location information services, movie ticketing and reservation services; providing information about recreational destinations, listing, and reviews, all for use on a global computer network. FIRST USE: 20000600. FIRST USE IN COMMERCE: 20000600 |
2769579 (US) |
September 30, 2003 |
|
FANDANGO BUCKS |
IC 016. US 002 005 022 023 029 037 038 050. G & S: Downloadable electronic publications in the nature of printed gift certificates for motion pictures and other entertainment events. FIRST USE: 20021004. FIRST USE IN COMMERCE: 20021004 |
3094600 (US) |
May 23, 2006 |
|
FANDANGO (and Logo) |
IC 041. US 100 101 107. G & S: Movie schedule and location information services, arranging for ticket reservations for shows and other entertainment events, and providing information about recreational destinations, listings, and reviews via a global computer network; providing a website which arranges for ticket reservations for motion pictures. FIRST USE: 20000630. FIRST USE IN COMMERCE: 20000630 |
3241364 (US) |
May 15, 2007 |
|
FANDANGO |
IC 025. US 022 039. G & S: Clothing, namely, t-shirts, sweatshirts, hats, caps and jackets, for sale in movie theaters and on web sites relating to the purchase of movie tickets. FIRST USE: 20050905. FIRST USE IN COMMERCE: 20050905 |
3564966 (US) |
January 20, 2009 |
2. The Disputed Domain is identical or confusingly similar to the Marks under Policy ¶4(a)(i). Respondent’s Disputed Domain is confusingly similar, on its face, to one or more of the Complainant’s registered trademarks. Searchers will likely be confused into believing that there is a connection of source, sponsorship, affiliation or endorsement between the respective Complainant’s Marks and Respondent by Respondent’s use of the Disputed Domain.
It has been held, in decisions too numerous to mention, that the mere addition of generic or other short words or letters to a trademark creates a confusingly similar domain name. For example, in DIRECTV, Inc v. Digi Real Estate Foundation, NAF Claim No. FA0702000914942 the Panel found that the <dishdirectv.com> domain name contains Complainant’s mark in its entirety and only adds the generic word ‘dish.’ Prefixing ‘directv’ with the generic word ‘dish’ does not prevent a finding of confusingly similarity under Policy ¶4(a)(i).” The Panel held that the domain is “likely to cause confusion among customers searching for Complainant’s goods and services.” Similarly, in Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., WIPO Case No. D2001-0075 the Panel found that the domain name <christiesauction.com> is confusingly similar to the complainant's mark since it merely adds the word “auction” used in its generic sense.
Similarly to the above-cited decisions, the Respondent in the present dispute merely adds the prefix “my” to Complainant’s FANDANGO BUCKS trademark. The use of the word “my” only enhance consumer confusion since Complainant does, in fact, allow its customers to set up individual accounts on its <fandango.com> website and list specific preferences for receiving movie information. The Respondent in the present dispute initially attracts searchers to its website by using an identical or confusingly similar copy of one or more of the Complainant’s Marks, thereby making visitors to its website think that they are being linked to one of the Complainant’s legitimate sites. See, Focus Do It All Group v. Athanasios Sermbizis, WIPO Case No. D2000-0923 (Complainant’s trademark rights and use of its mark “make it likely beyond real doubt that consumers who know that mark will think that ‘focus-do-it-all.com’ is their address). As reasoned in Athanasios, even if searchers discover they are not at Complainant’s site, searchers may be led to believe that the Complainant endorsed, sponsored or affiliated itself with the good and services offered at the website of the Disputed Domain. As in Athanasios, Respondent here uses the FANDANGO Marks in its site’s domain name as well as in the title and body of its website. It only makes sense that if searchers see the Marks used in this way, they will be confused and led to believe that, even if the services are not those of Complainant, they are at least affiliated with, endorsed or sponsored by Complainant.
Further, Respondent has created initial interest confusion. As reasoned in Athanasios, supra., even if searchers eventually discover they are not at Complainant’s site, they may be led to believe that Complainant endorsed, sponsored or affiliated themselves with the good and services offered at the <myfandangobucks.com> website. Similar to the facts in Athanasios, Respondent prominently uses the Marks in its site’s domain name as well as in the title and body of its website. It only makes sense that if searchers see the Marks listed in the body of the <myfandangobucks.com> web page searchers will be confused and led to believe that, even if the goods and services offered through Respondent’s website are not those of Complainant, they are at least affiliated with, endorsed or sponsored by Complainant.
(b) Respondent has no rights or legitimate interest in the Disputed Domain under Policy ¶4(a)(ii).
Respondent is not affiliated with or authorized by Complainant to use the FANDANGO name and the impression Respondent creates of being affiliated with Complainant is blatantly false. Even assuming, arguendo, that Respondent’s business actually exists and is somehow a licensed entity its use of the famous name FANDANGO is a clear infringement upon the trademark rights of Complainant. As such, Respondent’s use is not bona fide nor legitimate under the UDRP. In Madonna Ciccone v. Dan Parisi, WIPO Case No. D2000-0847 (October 16, 2000), the Panel held that “use which intentionally trades on the fame of another cannot constitute a ‘bona fide’ offering of goods or services. . . . to conclude otherwise would mean that a Respondent could rely on intentional infringement to demonstrate a legitimate interest, an interpretation which is obviously contrary to the intent of the Policy.”
Furthermore, a respondent has no rights or legitimate interest in a domain where the respondent made no efforts to avoid registering and using a domain name that is identical or confusingly similar to marks held by others and where the domain is identical or confusingly similar to a famous or distinctive trademark. Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964. Had Respondent done even the most cursory search on Google, Yahoo or any similar search engine, or had it done a search of the US trademark registry, it would have quickly learned that Complainant’s FANDANGO trademark is famous, is covered by many registrations, and is not available for use by Respondent. Quite the opposite, from the <myfandangobucks.com> website, it is clear that Respondent was both fully aware of Complainant and its Marks and very intentionally is trying to commit fraud or otherwise trade on Complainant’s good will.
Respondent is not commonly known by the name <myfandangobucks.com> or <fandangocard.info> and so its actions do not fall within Policy ¶4(c)(ii). Upon information and belief, due to its infringing use of the Marks, Respondent is not legally commonly known by the name “FANDANGO” or “CHEAP FANDANGO TICKET” nor does Respondent legitimately operate a business or other organization under this mark or name and does not own any trademark or service mark rights in the FANDANGO name. The mere existence of Respondent’s website does not, itself, demonstrate otherwise. See, Madonna Ciccone supra. Also see, Dell Inc. v. George Dell and Dell Net Solutions, WIPO Case No. D2004-0512 (regarding the domain <dellnetsolutions.com> “there is no evidence that the Respondents’ business has been commonly known by that name. Further, the Respondents added terms to the surname to create the disputed domain name.”).
Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain without intent for commercial gain, and so its actions do not fall within Policy ¶4(c)(iii). Instead, Respondent is using these domain names to confuse and misleadingly divert consumers, or to tarnish the FANDANGO Marks. In Dr. Ing. h.c. F. Porsche AG v. Limex, LLC, WIPO Case No. D2003-0649 the Panel noted that “The 3 domain names in issue use the PORSCHE trademark to attract potential customers to the generic [auto] loan business.” The Panel held that such use, in a domain name, of one manufacturer’s trademark to offer products or services relating to goods sold under that trademark and also other manufacturer’s trademarks did not constitute a legitimate or fair use of the domain. Id.
Further, in Athanasios, supra, the Panel found that respondent’s use “could in no way be characterized as fair, because consumers would think that they were visiting a site of the Complainant until they found that instead they were in a directory which would do the Complainant potential harm”. Here, searchers for Complainant’s FANDANGO goods and services, who used the Disputed Domain, would be confused and think they were visiting a site of the Complainant’s, or an authorized company, until they discovered that they were in a site of an unrelated company and a possibly fraudulent offer. Such use cannot be considered fair. See, Société pour l’œuvre et la mémoire d’Antoine de Saint Exupéry-Succession Saint Exupéry - D’Agay v. The Holding Company, WIPO Case No. D2005-0165 (confusingly similar name and the commercial activity on respondent’s websites would lead to visitors being diverted away from complainant’s legitimate website even after such visitors realized they were not on the legitimate site), and Option One Mortgage Corporation v. Option One Lending, WIPO Case No. D2004-1052 (respondent’s use of optiononelending.com was not bona fide nor legitimate where such domain was nearly identical to Complainant’s trademark).
Lastly, Respondent’s use has tarnished and diluted the FANDANGO Marks. Respondent has diminished consumers’ capacity to associate the Marks with the quality products and services offered under the Marks by Complainant by using the Marks in association with a site that is not related to Complainant’s quality branded products and which may be fraudulent, stealing money and personal information from Complainant’s customers.
(c) Respondent Registered The Disputed Domain In Bad Faith Under Policy ¶4(a)(iii).
The Policy clearly explains that bad faith can be found where a Respondent, by using a domain name, intentionally attempts to attract, for commercial gain, internet searchers to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. See Policy ¶4(b)(iv).
Respondent intentionally used the Marks without Complainant’s consent as is evident from the content on its website. In any case, Respondent was put on constructive notice of Complainant’s rights in its Marks through Complainant’s extensive prior use of the FANDANGO Marks and the <fandango.com> domain as well as its Trademark Registrations, all of which predate the creation date of the Disputed Domain. See, American Funds Distributors, Inc. v. Domain Administration Limited, WIPO Case No. D2007-0950 (“the extensive prior use of that name and the fact that it comprises the dominant part of several U.S. registered trademarks provided constructive knowledge of the Complainant’s trademark rights….”). In Champion Broadcasting System, Inc. v. Nokta Internet Technologies, WIPO Case No. D2006-0128 the Panel held that “the principle of constructive notice can be applied in accordance with the Rules, Paragraph 15. Thus, Respondent’s constructive knowledge of Complainant’s rights in the mark WUNR and the use of a confusing similar domain name is indicative evidence of bad faith.”
Respondent is seeking to obtain commercial gain from its use of the Disputed Domain. When a searcher reaches Respondent’s site, it is presented with a likely fraudulent sale pitch for movie tickets under the infringing FANDANGO name. In AllianceBernstein LP v. Texas International Property Associates - NA NA, WIPO Case No. D2008-1230, the Panel found that a respondent who intentionally attempts to attract internet searchers to its infringing website for commercial gain acts in bad faith.
Finally, as more fully set forth above, Respondent intentionally infringes upon Complainant’s famous FANDANGO trademarks by using such Marks in its domain names and websites. Thus, Respondent seeks to attract Internet searchers by creating a likelihood of confusion with Complainant’s FANDANGO Marks. See, e.g., DIRECTV, Inc v. Digi Real Estate Foundation.
Thus, all of the factors under Policy ¶4(b)(iv) strongly demonstrate that Respondent has registered and used the Disputed Domain in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant Fandango, Inc. owns the rights to use its FANDANGO BUCKS mark in connection with its Internet and phone sales of movie related products, in particular; the sale of gift certificates which can be used to purchase movie tickets through Complainant’s website. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its FANDANGO BUCKS mark (e.g., Reg. No. 3,094,600 issued May 23, 2006).
Respondent, Gift Card Store a/k/a Richark Jackson, registered the <myfandangobucks.com> domain name on March 4, 2010. The disputed domain name resolves to a website which prominently displays Complainant’s mark, purports to offer discounted “fandango bucks” gift certificates, and allows Internet users to input information to check their gift card balance.
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 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 contends it has established rights in the FANDANGO BUCKS mark. The Panel finds trademark registrations with the United States Patent and Trademark Office are sufficient to establish rights in a 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 Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations). Therefore, the Panel finds Complainant has established rights under Policy ¶4(a)(i) in the FANDANGO BUCKS marks through its registrations with the USPTO (e.g., Reg. No. 3,094,600 issued May 23, 2006).
Complainant contends Respondent’s <myfandangobucks.com> domain name is confusingly similar to Complainant’s FANDANGO BUCKS mark. The disputed domain name contains Complainant’s entire mark, removes the space between the two words, adds the generic term “my” and adds the generic top-level domain (“gTLD”) “.com.” Previous panels have found the addition of generic terms render a disputed domain name confusingly similar to a complainant’s mark. Preceding panels have also asserted the removal of a space and the addition of a gTLD do not sufficiently distinguish a disputed domain name from a complainant’s mark. See NIIT Ltd. v. Parthasarathy Venkatram, D2000-0497 (WIPO Aug. 4, 2000) (finding that the “domain name ‘myniit.com,’ which incorporates the word NIIT as a prominent part thereof, is confusingly similar to the Complainant’s trade name and trademark NIIT”); see also
Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). This Panel agrees. Therefore, the Panel finds Respondent’s <myfandangobucks.com> domain name is confusingly similar to FANDANGO BUCKS mark pursuant to Policy ¶4(a)(i).
The Panel finds Policy 4(a)(i) satisfied.
Complainant asserts Respondent lacks rights and legitimate interests in the <myfandangobucks.com> domain name. Previous panels have found when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove it has rights or legitimate interests pursuant to Policy ¶4(a)(ii). Complainant has made a prima facie case. Because Respondent has failed to respond to the complaint, the Panel may infer Respondent does not have any rights or legitimate interests in the <myfandangobucks.com> domain name. 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 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.”). However, this Panel will nonetheless examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶4(c).
Complainant asserts Respondent is not authorized to use the FANDANGO BUCKS mark. The WHOIS information identifies the domain name registrant as “Gift Card Store a/k/a Richark Jackson.” There is no other indication in the record, or any evidence set forth to show Respondent is commonly known by the <myfandangobucks.com> domain name. Therefore, the Panel finds Respondent has not established any rights or legitmate interests in the disputed domain name pursuant to Policy ¶4(c)(ii). See 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); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Respondent uses the <myfandangobucks.com> domain name to directly compete with the Complainant by offering Complainant’s product at a “discounted” price. The Panel finds a strictly competing use, such as this, 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 Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Am. Tool & Machining, Inc. v. EZ Hitch Inc., FA 113961 (Nat. Arb. Forum July 16, 2002) (holding that Respondent lacks rights and legitimate interests in the domain name because “Respondent is competing in the same industry as Complainant, selling a product that is arguably identical to Complainant's product and under the same name”).
The Panel finds Policy ¶4(a)(ii) satisfied.
Respondent uses the <myfandangobucks.com> domain name to offer Complainant’s goods at discounted rates, which Complainant has not authorized Respondent to do (and which is not likely to actually happen because Respondent cannot actually sell Complainant’s gift certificates). The Panel finds Respondent’s use to be a disruption of Complainant’s business under Policy ¶4(b)(iii). See Caterpillar Inc. v. Vine, FA 97097 (Nat. Arb. Forum June 22, 2001) (“Respondent registered each of the disputed domain names in order to gain customers and to disrupt Complainant's business of authorizing dealers to sell its CATERPILLAR equipment.”); see also Fossil, Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the <fossilwatch.com> domain name from the respondent, a watch dealer not otherwise authorized to sell the complainant’s goods, to the complainant).
Respondent is commercially benefiting from the intentional confusion it has created by registering the <myfandangobucks.com> domain name which is confusingly similar to Complainant’s FANDANGO BUCKS mark. Respondent prominently displays Complainant’s mark on his page which ultimately entices Internet users to buy his presumably bogus product thinking they are receiving Complainant’s genuine goods. The Panel finds this use to be in bad faith pursuant to Policy ¶4(b)(iv). See Utensilerie Assoc. S.p.A. v. C & M, D2003-0159 (WIPO Apr. 22, 2003) (“The contents of the website, offering Usag products, together with the domain name may create the (incorrect) impression that Respondent is either the exclusive distributor or a subsidiary of Complainant, or at the very least that Complainant has approved its use of the domain name.”); see also Hunter Fan Co. v. MSS, FA 98067 (Nat. Arb. Forum Aug. 23, 2001) (finding bad faith where the respondent used the disputed domain name to sell the complainant’s products without permission and mislead Internet users by implying that the respondent was affiliated with the complainant).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered the <myfandangobucks.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: October 24, 2010
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