WordPress Foundation v. Honk Tang
Claim Number: FA1106001391449
Complainant is WordPress Foundation (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Honk Tang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wordprese.org>, registered with Melbourne IT Ltd.
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 June 1, 2011; the National Arbitration Forum received payment on June 7, 2011.
On June 1, 2011, Melbourne IT Ltd confirmed by e-mail to the National Arbitration Forum that the <wordprese.org> domain name is registered with Melbourne IT Ltd and that Respondent is the current registrant of the name. Melbourne IT Ltd has verified that Respondent is bound by the Melbourne IT Ltd 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 June 8, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 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@wordprese.org. Also on June 8, 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 June 29, 2011, 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 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. The Complainant owns the WORDPRESS Trademarks and makes extensive use of them such that they have become well-known.
(a) Complainant Owns The Marks Complainant is the owner of the distinctive and well known WORDPRESS trademark and its corresponding logo (the “Marks”). At least as early as March 28, 2003, and long prior to the creation of the <word-press.org> domain, Complainant, and its licensee Automattic, Inc., commenced use of the Marks in connection with what has become the largest, self-hosted blogging and internet publishing tool in the world, used on millions of websites and seen by tens of millions of people every day in hundreds of different languages. Since its inception, Complainant has continually used the Marks in commerce and has gained both common-law and registered trademark rights.
(b) The Marks Are Extensively Used, Promoted and Protected. Complainant, on its own and through its licensee, Automattic, Inc., is a leading provider of blogging and internet publishing services and its website <wordpress.com> ranks at No. 25 in visitor traffic on the entire internet according to the metrics used by Quantcast.com. Its <wordpress.org> domain also ranks very high on Quantcast.com. In 2004 and early 2005 Complainant was mentioned in articles on the famous cNet.com technology website as well as the New York Times and the first Wikipedia page discussing Complainant’s services was created. Its reputation at that time was further evident in the number of times the WORDPRESS name was discussed on private blogs and other websites. Even a Google search which limits results to dates between 2003 and 2005 and excludes Complainant’s own websites, shows how extensive was the reputation of the WORDPRESS Mark during Complainant’s early history.
In 2006 WordPress landed the famous news broadcast organization CNN as a client. The WORDPRESS services have also been the subject of national publicity including various news articles, YouTube videos and a book, in the famous “Dummies” series, entitled “WordPress For Dummies.” Complainant has also been the recipient of recognition and awards. In 2007 WordPress won a Packt Open Source CMS Award and in 2009 it won the best Open Source CMS Award. Further, WordPress was featured on the cover of Linux Journal in July of 2008 and in a business section cover story in the San Francisco Chronicle that same month. At that time WordPress was ranked at #31 in the world on the Alexa.com website with 90 million monthly page views. In January of 2009 WordPress appeared in a story in USA Today. By October, 2009, and based on survey evidence, the Open Source CMS Market Share Report reached the conclusion that WordPress enjoys the greatest brand strength of any open source content management system.
Complainant’s <wordpress.com> website provides information to prospective users and generates significant revenue for Complainant. As a result of Complainant’s long and extensive use and efforts to promote the WORDPRESS Marks, the Marks have gained significant common-law and registered rights and serve to identify and indicate the source of Complainant’s services to the public, and to distinguish its services from those of others. The Marks have become well-known to, and widely recognized by consumers.
(c) Complainant’s WORDPRESS marks are aggressively protected through registration and enforcement. Amongst others, Complainant owns many Trademark Registrations for the Marks around the world, including the following:
Mark WORDPRESS
Goods and Services IC 009. US 021 023 026 036 038. G & S: Downloadable software program for use in design and managing content on a website. FIRST USE: 20030328. FIRST USE IN COMMERCE: 20030328
Reg. No.3201424
Reg. Date January 3, 2007
Mark WORDPRESS (Logo)
Goods and Services IC 009. US 021 023 026 036 038. G & S: Downloadable software program for use in design and managing content on a website. FIRST USE: 20030328. FIRST USE IN COMMERCE: 20030328
IC 042. US 100 101. G & S: Software solutions, namely providing use of on-line non-downloadable software for use in enabling internet publishing. FIRST USE: 20030328. FIRST USE IN COMMERCE: 20030328
Reg. No.3201428
Reg. Date January 23, 2007
Mark WORDPRESS WARES
Goods and Services (1) Downloadable software program and hosted software for use in designing and managing content on a website.
SERVICES:
(1) Hosted software solution services, namely providing use of on-line non-downloadable software for use in enabling internet publishing.
Used in CANADA since at least as early as January 2004
Reg. No.TMA698039 (Canada)
Reg. Date October 9, 2007
Mark WORDPRESS
Goods and Services
Cl. 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus.
Cl. 35: Advertising; business management services; business administration; office functions.
Cl. 38: Telecommunications.
Cl. 41: Education; providing of training; entertainment; sporting and cultural activities.
Cl. 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software; legal services.
Reg. No.005101068 (European Community)
Reg. Date November 19, 2008 (Filed: May 29, 2006)
2. Respondent’s registration of the <wordprese.org> violates the Policy.
(a) The <wordprese.org> domain is identical or confusingly similar to the Marks under Policy ¶4(a)(i). Respondent’s domain <wordprese.org> is confusingly similar, on its face, to Complainant’s registered and distinctive WORDPRESS trademarks. Searchers will likely be confused into believing that there is a connection of source, sponsorship, affiliation or endorsement between Complainant and Respondent by Respondent’s use of the domain name <wordprese.org>.
It has been held, in decisions too numerous to mention, that a minor misspelling of a Complainant’s trademark, or the addition of generic or other words creates a confusingly similar domain name. See, W.W. Grainger, Inc. v. Private Registration (auc), NAF Claim No. FA0908001281960 (2009) (<gainger.com> held confusingly similar to GRAINGER trademark). In DIRECTV, Inc v. Digi Real Estate Foundation, NAF Claim No. FA0702000914942 the Panel found that “Respondent’s <dirtectv.com>, <durectv.com>, <dorecttv.com>, and <dishdirectv.com> domain names are all confusingly similar to Complainant’s DIRECTV mark pursuant to Policy ¶4(a)(i), because Respondent’s domain names each contain Complainant’s mark in its entirety or are simply a misspelled variation of the DIRECTV mark.” In relation to a different domain owned by respondent, the Panel went on to hold that “Respondent’s <dishdirectv.com> domain name contains Complainant’s mark in its entirety and 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 all of the domains at issue are “likely to cause confusion among customers searching for Complainant’s goods and services.” Similarly, in Brownells, Inc. v. Texas International Property Associates, WIPO Case No. D2007-1211, the respondent used a minor misspelling of the complainant’s trademark leading the panel to find that “Respondent has chosen the Domain Name precisely to attract users who mistype the name of the complainant’s website.” Id. See also, Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., WIPO Case No. D2001-0075 (finding 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 initially attracts searchers by using a confusingly similar copy of Complainant’s Marks, thereby making internet users think that the domain will lead 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.
(b) Respondent has no rights or legitimate interest in the domain name <wordprese.org> Under Policy ¶4(a)(ii). Section 4(c) of the Policy sets out certain circumstances which, if proven by the evidence presented, may demonstrate Respondent’s rights or legitimate interests to the <wordprese.org> domain. None of these circumstances apply to Respondent in the present dispute.
Respondent’s actions are not a bona fide offering of goods or services under Policy ¶4(c)(i). Where a domain is identical or confusingly similar to a well known trademark yet does not resolve to any website, panels have not hesitated to hold that no legitimate interest exists on the part of a respondent. For example, one Panel found that “the failure of Respondent’s confusingly similar <victoriassecrret.com> domain name to resolve to any website is evidence that Respondent has not made a bona fide offering of goods and services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).” See, Victoria's Secret Stores Brand Management, Inc. v. Travis Martin c/o Dynadot Privacy, NAF Claim No. FA0903001250363 (April 22, 2009), citing, George Weston Bakeries Inc. v. McBroom, NAF Case No. FA 933276 (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶4(c)(i) or Policy ¶4(c)(iii) where it failed to make any active use of the domain name); and U.S. News & World Report, Inc. v. Zhongqi, NAF Case No. FA 917070 (“Respondent’s failure to associate content with its disputed domain name evinces a lack of rights and legitimate interests pursuant to Policy ¶4(a)(ii).”).
Similarly, in Morgan Stanley v. Israrul Hasan c/o Manhattan Consulting Partners, LLC, NAF Claim No. FA0902001246046 (2009), the panel stated:
As of January 5, 2009 the disputed domain name resolved to an ‘under construction’ website. As of January 12, 2009, the disputed domain name did not resolve to a website at all. The Panel finds that Respondent’s failure to make an active use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use and therefore does not establish rights or legitimate interests pursuant to Policy ¶¶4(c)(i) or (iii).
See also, Hewlett-Packard Co. v. Rayne, NAF Claim No. FA101465 (2001) (finding that the “under construction” page, hosted at the disputed domain name, did not support a claim of right or legitimate interest under Policy ¶4(a)(ii)); Pharmacia & Upjohn AB v. Romero, WIPO Case No. D2000-1273 (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question).
Next, Respondent is not commonly known by the name <wordprese.org> and so its actions do not fall within Policy ¶4(c)(ii). Upon information and belief, Respondent is not commonly known by the name “WORDPRESS” nor does Respondent operate a business or other organization under this mark or name and does not own any trademark or service mark rights in the WORDPRESS name. 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.”)
Further, Respondent is not making a legitimate noncommercial or fair use of the <wordprese.org> domain without intent for commercial gain, and so its actions do not fall within Policy ¶4(c)(iii). Instead, Respondent is using the domain name to confuse and misleadingly divert consumers or to tarnish the Marks. See Focus Do It All Group v. Athanasios Sermbizis, WIPO Case No. D2000-0923. Searchers for Complainant’s services branded with its Marks, who typed in the Disputed Domain would be confused and think they were attempting to visit a site of the Complainant’s until they discovered that this domain does not resolve to any web content. This could lead visitors to the mistaken belief that Complainant had either gone out of business or was simply not devoting attention to its blogging services. In either case, Complainant’s Marks are harmed and such use cannot be considered fair.
Lastly, Respondent’s use has tarnished and diluted the Marks. Respondent has diminished consumers’ capacity to associate the Marks with the quality services offered under the Marks by Complainant by using the Marks in association with a domain that does not resolve to any content. As noted above, Respondent’s use creates the very real risk that Complainant’s customers and potential customers may be led to believe that the failure of <wordprese.org> to resolve to a website indicates that either Complainant has gone out of business or it has failed to devote attention to the most significant segment of its services.
(c) Respondent Registered The Domain In Bad Faith Under Policy ¶4(a)(iii).
Respondent intentionally used the Marks without consent from Complainant and was put on constructive notice of Complainant’s rights in the Marks through Complainant’s Federal Trademark Registrations which predate the creation date of <wordprese.org>. 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….”). Therefore, Respondent knowingly and intentionally used the Marks in violation of Complainant’s rights in the Marks and, thus, in bad faith.
Respondent has no website affiliated with the <wordprese.org> domain and has merely passively held the name. However, beginning with Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, a number of Panels have held that, after considering all the circumstances of a given case, it is possible that a “[r]espondent’s passive holding amounts to bad faith.” Telstra, supra (stating that “paragraph 4(b) recognizes that inaction (e.g., passive holding) in relation to a domain name registration can, in certain circumstances, constitute a domain name being used in bad faith…. [I]n considering whether the passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the Administrative Panel must give close attention to all the circumstances of the Respondent’s behaviour.”). See also, Teachers Insurance and Annuity Association of America v. Wreaks Communications Group, WIPO Case No. D2006-0483 and Autoshop 2 Di Battaglia Ferruccio C. S.N.C. v. Willamette RF Inc., WIPO Case No. D2004-0250 (collecting cases citing Telstra).
Here, in addition to being on constructive notice, Respondent was certainly on actual notice of Complaint’s rights in the WORDPRESS Marks. Through its marketing efforts, Complainant had made the Marks famous throughout the world well before Respondent registered the disputed domain name. See Telstra, supra (the Policy, paragraph 4(a)(iii), is satisfied where “Complainant’s trademark has a strong reputation and is widely known”). In addition, Complainant has operated a web site at <worddpress.org> since 2003, many years before Respondent registered the Disputed Domain. This shows that Respondent intended to divert internet traffic that was aimed for Complainant’s legitimate site. Taken as a whole, these circumstances establish bad faith registration by Respondent.
Thus, the facts here strongly demonstrate that Respondent has registered and used the <wordprese.org> domain in bad faith under Policy ¶4(a)(iii).
B. Respondent failed to submit a Response in this proceeding.
Complainant WordPress Foundation owns the WORDPRESS mark and has used the mark since March 28, 2003 in connection with its self-hosted blogging and Internet publishing tool. Complainant holds a number of trademark registrations for its WORDPRESS mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,201,424 issued January 3, 2007).
Respondent Honk Tang registered the <wordprese.org> domain name on July 1, 2009. The disputed domain name does not resolve to an active website with content.
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 argues it has established rights in the WORDPRESS mark. Past panels have decided a complainant may demonstrate rights in a mark by registering with a trademark authority. See 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); see also 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)). Complainant is not required to register its mark within China, the country where Respondent resides or operates. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); 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). Complainant has numerous trademark registrations for its WORDPRESS mark with the USPTO (e.g., Reg. No. 3,201,424 issued January 3, 2007). Therefore, the Panel holds Complainant has confirmed its rights in the WORDPRESS mark through its registration with a trademark authority pursuant to Policy ¶4(a)(i).
Complainant also argues Respondent’s <wordprese.org> domain name is confusingly similar to Complainant’s WORDPRESS mark. Complainant’s entire WORDPRESS mark is used within the disputed domain name and changes only by misspelling the word with a single letter “e” and by adding the generic top-level domain (“gTLD”) “.org.” The Panel finds misspelling a mark by a single letter fails to sufficiently distinguish the disputed domain name from mark under the facts of this case. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive). The Panel also finds that adding a gTLD to a mark is irrelevant to a Policy ¶4(a)(i) determination. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶4(a)(i) analysis). The Panel concludes Respondent’s <wordprese.org> domain name is confusingly similar to Complainant’s WORDPRESS mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant claims Respondent lacks rights and legitimate interests in the disputed domain name. Previous panels have held a complainant must first make a prima facie showing in support of its claims under Policy ¶4(a)(ii) before the burden shifts to the respondent to demonstrate that it has rights and legitimate interests. 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.”). Complainant has presented a prima facie case. Due to Respondent’s failure to submit a response to the Complaint, the Panel may assume Respondent does not have rights or legitimate interests according to Policy ¶4(a)(ii). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). Out of an abundance of caution, this Panel chooses to examine the record to determine whether Respondent has rights or legitimate interests pursuant to Policy ¶4(c).
Complainant asserts Respondent is not commonly known by the <wordprese.org> domain name. The WHOIS information identifies Respondent as “Honk Tang,” which is not similar to the disputed domain name. Complainant maintains Respondent does not operate a business or other organization under the WORDPRESS mark. The Panel concludes Respondent is not commonly known by the disputed domain name, under Policy ¶4(c)(ii), because no evidence indicates otherwise. 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 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).
Respondent’s has no active website at the <wordprese.org> domain name. The Panel finds Respondent’s inactive use of the disputed domain name 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 Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶4(c)(iii).”); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶4(c)(i) or Policy ¶4(c)(iii) where it failed to make any active use of the domain name).
The Panel finds Policy ¶4(a)(ii) satisfied.
Although Complainant does not specifically make any Policy ¶4(b) arguments, the Panel may look beyond ¶4(b) to the totality of the circumstances when analyzing bad faith. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”).
Complainant argues Respondent is inactively holding the <wordprese.org> domain name. The Panel concludes Respondent’s registration and the failure to use the disputed domain name to operate a website is evidence of bad faith under Policy ¶4(a)(iii) since 730 days have passed since the domain was registered and considering the other facts and circumstances of this case. See Disney Enters. Inc. v. Meyers, FA 697818 (Nat. Arb. Forum June 26, 2006) (holding that the non-use of a disputed domain name for several years constitutes bad faith registration and use under Policy ¶4(a)(iii); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶4(a)(iii) of the Policy).
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 that the <wordprese.org> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: July 1, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page