Consumerland LLC v. consumerland
Claim Number: FA1101001367629
Complainant is Consumerland LLC (“Complainant”), represented by James Conrow, Texas, USA. Respondent is consumerland (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bestconsumerland.com>, registered with GoDaddy.com, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his or knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyeson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 14, 2011; the National Arbitration Forum received payment on January 14, 2011.
On January 14, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <bestconsumerland.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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 19, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 2011 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@bestconsumerland.com. Also on January 19, 2011, 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.
The Parties jointly requested a one-time Stay on January 31, 2011. The Order to Stay was granted on February 3, 2011. Complainant requested the Stay be lifted on March 16, 2011. The Order to Lift Stay was granted on March 16, 2011.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 22, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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. Respondent’s <bestconsumerland.com> domain name is confusingly similar to Complainant’s CONSUMERLAND mark.
2. Respondent does not have any rights or legitimate interests in the <bestconsumerland.com> domain name.
3. Respondent registered and used the <bestconsumerland.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Consumerland LLC, owns the exclusive rights to the CONSUMERLAND mark in respect to its offering of consumer goods, product reviews and price comparisons. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its CONSUMERLAND mark (Reg. No. 3,596,451 issued March 24, 2009).
Respondent, consumerland, registered the <bestconsumerland.com> domain name on May 20, 2010. The disputed domain name resolves to a website featuring commercial links unrelated to 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 contends that its registration of the CONSUMERLAND mark with the USPTO establish its rights in the mark (Reg. No. 3,596,451 issued March 24, 2009). The Panel concurs; under Policy ¶ 4(a)(i) a federal trademark registration is sufficient to establish a complainant’s 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).
Complainant argues that Respondent’s <bestconsumerland.com> domain name is confusingly similar to its CONSUMERLAND mark. The disputed domain name contains Complainant’s entire CONSUMERLAND mark, adds the generic term “best” and adds the generic top-level domain (“gTLD”) “.com.” Previous panels have concluded that the addition of generic terms and a gTLD are insufficient in distinguishing a disputed domain name from a complainant’s mark. See Warner Bros. Entm’t Inc. v. Sadler, FA 250236 (Nat. Arb. Forum May 19, 2004) (finding the addition of generic terms to Complainant’s HARRY POTTER mark in the respondent’s <shop4harrypotter.com> and <shopforharrypotter.com> domain names failed to alleviate the confusing similarity between the mark and the domain names); see also Nevada State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). Accordingly, the Panel finds that Respondent’s <bestconsumerland.com> domain name is confusingly similar to Complainant’s CONSUMERLAND mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <bestconsumerland.com> domain name. A complainant must only first make a prima facie case and then the burden of proof shifts to the respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Here, the Panel finds that Complainant has made a prima facie case. And because Respondent has failed to respond to the complaint, the Panel is allowed to make the inference that Respondent does not have rights or legitimate interests in the <bestconsumerland.com> domain name. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
The WHOIS information identifies the domain name registrant as “consumerland.” However, because of Respondent’s failure to respond to the complaint, the Panel finds that Respondent has not provided sufficient evidence to show that it has been commonly known by the disputed domain name prior to its registration. Further, Complainant asserts that Respondent has not been authorized to use the CONSUMERLAND mark. Although the WHOIS information appears to show that Respondent has been known as “consumerland,” there is no other evidence given to suggest that Respondent is commonly known by the <bestconsumerland.com> domain name. Accordingly, the Panel finds that Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name); see also City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”).
Respondent uses the disputed domain name to offer pay-per-click links, which are unrelated to Complainant’s business. The Panel finds such use is not a bona fide offering of good or services as pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial use under Policy ¶ 4(c)(iii). See Constellation Wines U.S., Inc. v. Texas Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see alsoVance 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).
The Panel finds Policy ¶ 4(a)(ii) is satisfied.
Complainant contends that Respondent is using the confusing similarity between the disputed domain name and the CONSUMERLAND mark to commercially benefit. Internet users are likely reach Respondent’s domain name by mistake while attempting to reach Complainant’s official website. In doing so, Internet users are likely to become confused as to any relationship between the two parties. This likely results in a profit for Respondent when the pay-per-click links at the disputed domain name are utilized. The Panel finds this to constitute bad faith registration and use under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Association of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)).
The Panel finds Policy ¶ 4(a)(iii) is 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 <bestconsumerland.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 29, 2011
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