Amanda De Wolf (formerly Moon) and The Estate of Keith Moon v. Liftoff Domains c/o Capital D.
Claim Number: FA1101001369537
Complainant is Amanda De Wolf (formerly Moon) and The Estate of Keith Moon (“Complainant”), represented by Stephen J. Strauss of FULWIDER PATTON LLP, California, USA. Respondent is Liftoff Domains c/o Capital D. (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <keithmoon.org>, registered with GoDaddy Software, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 25, 2011; the National Arbitration Forum received payment on January 25, 2011.
On January 25, 2011, GoDaddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <keithmoon.org> domain name is registered with GoDaddy Software, Inc. and that Respondent is the current registrant of the names. GoDaddy Software, Inc. has verified that Respondent is bound by the GoDaddy Software, 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 26, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 15, 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@keithmoon.org. Also on January 26, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 18, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <keithmoon.org> domain name is identical to Complainant’s KEITH MOON mark.
2. Respondent does not have any rights or legitimate interests in the <keithmoon.org> domain name.
3. Respondent registered and used the <keithmoon.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Amanda De Wolf (formerly Moon) and The Estate of Keith Moon, owns the exclusive rights to the KEITH MOON mark. Complainant is the daughter of the famous singer Keith Moon and she maintains rights in his name which is used in connection with music and memorabilia. Complainant holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the KEITH MOON mark (e.g., Reg. No. 3,305,474 issued October 9, 2007).
Respondent, Liftoff Domains c/o Capital D., registered the <keithmoon.org> domain name on May 21, 2007. The disputed domain name resolves to a directory website that features hyperlinks to third-party websites that are 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 it has established rights in the KEITH MOON mark. The Panel finds that trademark registration with a federal trademark authority is sufficient to establish rights in a mark. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO). Complainant holds trademark registrations with the USPTO for the KEITH MOON mark (e.g., Reg. No. 3,305,474 issued October 9, 2007). Accordingly, the Panel finds that Complainant has established rights in the KEITH MOON mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <keithmoon.org> domain name is identical to Complainant’s KEITH MOON mark. The disputed domain name contains Complainant’s entire KEITH MOON mark, merely removing the space in between the two words and adds the generic top-level domain (“gTLD”) “.org.” Previous panels have found that the removal of spaces and the addition of a gTLD are both irrelevant changes to a mark because both are required in a domain name. 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 Sea World, Inc. v. JMXTRADE.com, FA 872052 (Nat. Arb. Forum Feb. 12, 2007) (“[Since] [t]he top-level gTLD is merely a functional element required of every domain name, the <shamu.org> domain name is identical to the SHAMU mark under a Policy ¶ 4(a)(i).”).
The Panel finds Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <keithmoon.org> domain name. Previous panels have found that once a complainant makes a prima facie case in support of its allegations, the burden of proof shifts to the respondent to prove that they do have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has made a prima facie case. Due to the fact that Respondent has failed to respond to the complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <keithmoon.org> 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 Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). However, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
When there is no evidence set forth in the record to show that a respondent has been commonly known by a disputed domain name, previous panels have taken such as an indication that respondent lacks rights or legitimate interests in said domain. In this instance, there is no such evidence being offered. Complainant asserts that Respondent is not authorized to use the KEITH MOON mark. The WHOIS information identifies the domain name registrant as “Liftoff Domains c/o Capital D.” Thus, the Panel finds that Respondent has not established rights or legitimate interests in the <keithmoon.org> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant submits a screen shot of the website resolving from the <keithmoon.org> domain name. This image shows a directory website that provides hyperlinks with titles like “Mele Silver Moon,” “Solar System Model,” “Solar Energy,” and “Power Distribution System.” The Panel presumes that Respondent profits from its use of the disputed domain name through the receipt of pay-per-click fees. Based on the evidence in the record, the Panel finds that Respondent uses the disputed domain name to operate a pay-per-click website that displays hyperlinks to third-party websites that are unrelated to Complainant. Accordingly, the Panel holds that Respondent does not use the <keithmoon.org> domain name to make 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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 also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
The Panel finds Policy ¶ 4(a)(ii) is satisfied.
Complainant most likely attempts to profit from its use of the disputed domain name by using the domain name to resolve to a pay-per-click website. Furthermore, Respondent’s <keithmoon.org> domain name is confusingly similar to Complainant’s KEITH MOON mark. Therefore, the Panel finds that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s KEITH MOON mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s site. Consequently, the Panel finds that Respondent’s behavior supports a finding that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also The Ass’n 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 <keithmoon.org> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 24, 2011
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