Tropical MBC, LLC v. R Patel
Claim Number: FA1107001396778
Complainant is Tropical MBC, LLC (“Complainant”), represented by Melissa D. Doogan of Volpe and Koenig PC, Pennsylvania, USA. Respondent is R Patel (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <povclips4sale.com>, registered with Wild West Domains, 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 July 1, 2011; the National Arbitration Forum received payment on July 5, 2011.
On July 6, 2011, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <povclips4sale.com> domain name is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, 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 July 11, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 1, 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@povclips4sale.com. Also on July 11, 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 August 8, 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:
This Complaint is based on the following factual and legal grounds: UDRP Rule 3(b)(ix).
I. FACTUAL BACKGROUND
A. Tropical’s Trademark, Business Operations and Web Site
Complainant, TROPICAL MBC, LLC. (referred to herein as “Tropical” or “Complainant”), is the owner and operator of the website operating at the URL www.clips4sale.com (referred to herein as the “CLIPS4SALE Website”). The CLIPS4SALE Website features adult-entertainment oriented media, offered under the trademarks CLIPS4SALE.COM and CLIPS4SALE (referred to collectively as “Tropical’s Marks” or “Tropical’s Marks”). Since at least as early as July 2003, Tropical has used the trademarks CLIPS4SALE and CLIPS4SALE.COM trademarks in connection with the CLIPS4SALE Website, and the associated media. The CLIPS4SALE.COM domain name was registered with Network Solutions, Inc. (“NSI”) at least as early as 2003 and has been in continuous use since that time. The CLIPS4SALE Marks are unique and distinctive to Tropical.
Tropical is the owner of the following registrations with the United States Patent and Trademark Office:
CLIPS4SALE.COM Reg. No. 3,508,680 Entertainment services, namely, providing a web site featuring downloadable film clips, photographs, and other multimedia materials in International Class 041
CLIPS4SALE Reg. No. 3,554,200 Entertainment services, namely, providing a web site featuring musical performances, musical videos, related film clips, photographs, and other multimedia materials in International Class 041
Tropical is also the owner of the internet domain names VIDEOS4SALE.COM, IMAGES4SALE.COM, XXXPICS4SALE.COM, and the related websites operated at WWW.IMAGES4SALE.COM and WWW.VIDEOS4SALE.COM. Thus, Tropical has established a family of “4SALE” trademarks for adult-entertainment oriented media available on the internet.
Clearly, through extensive and exclusive use of the CLIPS4SALE and CLIPS4SALE.COM Marks, Tropical has established a strong secondary meaning in the CLIPS4SALE and CLIPS4SALE.COM Marks for Tropical’s services. Consumers and the trade have come to recognize Tropical as the source of adult-entertainment media offered via its CLIPS4SALE.COM Website. In addition, Tropical has created a family of “4SALE” marks and domain names directed to Tropical’s relevant industry and consumers.
The CLIPS4SALE.COM domain name has accumulated a great deal of goodwill via its popular CLIPS4SALE.COM Website. The CLIPS4SALE.COM domain name is used to identify Tropical as a source of its goods and services. Thus, the domain name CLIPS4SALE.COM has achieved the status of a common law trademark and is a protectable right under the Policy in addition to and as a part of Tropical’s Marks.
B. Respondent’s Unlawful Activities
The domain name in issue is registered in the name of Respondent, “R. Patel,” and is referred to herein as “Infringing Domain Name.”
It is apparent that Respondent has targeted Tropical’s CLIPS4SALE Marks. The domain name registered by Respondent is identical to or confusingly similar to a trademark or service mark in which the Complainant has rights. Respondent’ domain name is identical to Complainant’s domain names and has merely added the word “POV” at the beginning of the domain name. Respondent’s website is a direct competitor of Tropical.
II. LEGAL ARGUMENT
Pursuant to the ICANN Rules, Tropical must establish the following to obtain the relief it requests in this action: (1) that the Infringing Domain Name is identical or confusingly similar to a trademark or service mark in which Tropical has rights; (2) that Respondent has no rights or legitimate interests in the Infringing Domain Name; and (3) that Respondent has registered and used the Infringing Domain Name in bad faith. (A true and correct copy of the ICANN Policy and the applicable Rules are enclosed.) For the reasons set forth below, Tropical submits that its Complaint satisfies each of these requirements.
A. The Infringing Domain Name Is Identical or Confusingly Similar to Tropical’s CLIPS4SALE and CLIPS4SALE.COM Marks
Respondent’s Infringing Domain Name wholly incorporates a variation of Tropical’s CLIPS4SALE and CLIPS4SALE.COM Marks, and the CLIPS4SALE.COM domain name, and is therefore nearly identical to and confusingly similar to Tropical’s CLIPS4SALE and CLIPS4SALE.COM Marks. Moreover, Respondent is using the Infringing Domain Name to operate websites offering goods and/or services in the adult media industry identical or virtually identical to those offered by Tropical under the CLIPS4SALE and CLIPS4SALE.COM Marks. Internet users will be led to believe that the Infringing Domain Name, and the site operated under the domain name, is associated or affiliated with, or sponsored or endorsed by, Tropical. The Infringing Domain Name is therefore acting as the equivalent of Tropical’s CLIPS4SALE and CLIPS4SALE.COM Marks.
There can be no argument that Respondent has merely taken Tropical’s established Marks and Domain Name, and has merely added the word “POV” to the beginning of the domain name.
As previous UDRP Panels have recognized, the addition of a term to an established trademark or domain name creates a confusingly similar domain name. See U-Haul International, Inc. v. ALCorp. N.A., Claim Number: FA0209000124739 (NAF November 4, 2002) (the fact that a domain name incorporates a Complainant’s mark “…is sufficient to establish identical or confusing similarity for purposes of the Policy despite the addition of other words to such marks”) (and cases cited therein);Yahoo! Inc. v. Hangzhou Hi2000 InfoTech Co. Ltd. a/k/a Hangzhou Shixin Info Tech Co. Ltd, Claim Number: FA0301000141825 (N.A.F. February 26, 2003) (<chemyahoo.com>, <chemicalyahoo.com>, <packyahoo.com>, <pharmyahoo.com>, <texyahoo.com>, <textileyahoo.com> and <yahoochem.com>- "it is also well-established under the Policy that a domain name composed of a trademark coupled with a generic term still is confusingly similar to the trademark"); Experian Information Solutions, Inc. v. BPB Prumerica Travel (a/k/a SFXB a/k/a H. Bousquet a/k/a Brian Evans), Case No. D2002-0367 (WIPO July 8, 2002); (experianautomotive.com - addition of the generic term, 'automotive,' does not distinguish Respondent's domain name from Complainant's mark because the domain contains Complainant’s EXPERIAN mark in its entirety); Renaissance Hotel Holdings, Inc. v. The Renaissance Cochin, Claim Number: FA0703000932344 (NAF April 23, 2007) (addition of geographic term to Complainant’s trademark creates confusingly similar domain name).
In addition, the addition of the word “POV” to Tropical’s trademark (e.g., the infringing POVCLIPS4SALE.COM domain name) is not considered to create a distinct mark capable of overcoming a claim of confusing similarity. See Victoria’s Secret v. Zuccarini, Claim Number: FA0010000095762 (NAF Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders it confusingly similar to Complainant’s marks); see also Hewlett-Packard Co. v. Zuccarini, FA FA00040000994454 (NAF May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to Complainant’s HEWLETT-PACKARD mark).
B. Respondent Has No Rights or Legitimate Interests in the Infringing Domain Name
The use of a domain name, which from its outset is infringing on the trademark rights of another, can never be considered legitimate. It has been widely recognized in domain names disputes that the registration of an infringing domain name is not a legitimate use under the UDRP. See Integrated Management Solutions, Inc. v. AMMG, Inc., FA 105215 (NAF, April 11, 2002); Expedia, Inc. v. European Travel Network, D2000-0137 (WIPO, April 18, 2000) (concluding the use of a domain name incorporating another’s trademark to direct users to a competing website is not a legitimate use); Chanel, Inc. v. Estco Tech. Group, D2000-0413 (WIPO, September 18, 2000) (recognizing that under the policy a legitimate use of a domain name must be non-infringing use); Renaissance Hotel Holdings, Inc. v. The Renaissance Cochin, Claim Number: FA0703000932344 (NAF April 23, 2007) (appropriating a Complainant’s mark to profit from it is not a bona fide offering of goods or services, and is not a legitimate use).
As stated in Technology Properties, Inc. v. Personal, Claim Number: FA96569 (NAF, March 26, 2001):
Offering bona fide services or products in connection with a website is evidence of rights and legitimate interests in the domain name. Policy ¶4(c)(i). However, offering services or products, via a confusingly similar domain name, that are comparable to the products and services of the trademark owner, is not a bona fide use of the domain name. See America Online, Inc. v. Xianfeng Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that “[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”). As such, Respondent’s above described use of the domain name is not evidence of rights or legitimate interests in the domain name. Thus, Policy ¶4(a)(ii) has been satisfied. [Emphasis supplied.]
See also, Underground Services, Inc. v CSS Group, LLC, Claim Number: FA96843 (NAF, April 27, 2001) (“Legitimate rights and interests do not accrue to the Respondent by way of trademark infringement.). Allowing Respondent to retain the Infringing Domain Name would do nothing more than reward infringement.
Respondent’s confusingly similar variation of Tropical’s CLIPS4SALE Marks is a blatant attempt to trade on the goodwill established by Tropical after great efforts. Consumers or potential consumers of Tropical’s services or media, when searching the internet, will be directed to Respondent’s Infringing Domain Name. However, Respondent has no connection or affiliation with Tropical and does not have a license or consent, express or implied, to use the CLIPS4SALE Mark in a domain name or in any other manner.
Respondent was not commonly known by the disputed domain name prior to its actual knowledge of Tropical’s rights. The inference is one of diversion of Internet traffic, not legitimate use. See Integrated Management Solutions, Inc. v. AMMG, Inc.; North Coast Med, Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000); Vapor Blast Mfg. Co. v. R & S Tech, Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001); The Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights and legitimate interests where the Respondent diverted Complainant’s customers to his websites) and Klosmea Pty. Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (“...the current use of the Domain Name is a thinly veiled attempt to attract, for commercial gain, persons aware of the Complainant’s products to the Respondent’s site by creating a likelihood of confusion with the Complainant’s Mark...).
Moreover, Respondent cannot rely on the fact that it was able to register the Infringing Domain Name as somehow legitimizing its infringement. As stated in TRW Inc. v. Autoscan Inc., D2000-0156 (WIPO, April 24, 2000), “If mere registration of the domain name was sufficient to establish rights or legitimate interests for the purposes of paragraph 4(a)(ii) of the Policy, then all registrants would have such rights or interests, and no complainant could succeed on a claim of abusive registration.”
Respondent’s registration of its infringing variation of the CLIPS4SALE and CLIPS4SALE.COM Marks, and the CLIPS4SALE.COM domain name, has no legitimate, non-infringing purpose.
C. Respondent Registered and is Using the Infringing Domain Name in Bad Faith
The ICANN Policy includes four circumstances, without limitation, that are to be considered evidence of the registration and use of a domain name in bad faith. Based upon the facts set forth in this Complaint, the third and fourth circumstances are most applicable. Pursuant to ICANN Policy 4 (b) (iii) and (iv), evidence of bad faith includes registering a “domain name primarily for the purpose of disrupting the business of a competitor” and an intentional attempt by Respondent to “attract, for commercial gain, Internet users to its web site . . . by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on Respondent’s web site or location.” Respondent has clearly intended to capitalize upon the goodwill associated with Tropical’s established CLIPS4SALE and CLIPS4SALE.COM Mark, and this conduct falls squarely within the conduct described in ICANN Policy 4 (b) (iii) and (iv).
Respondent registered a variation of Tropical’s coined CLIPS4SALE and CLIPS4SALE.COM Marks.
Respondent’s deliberate and intentional copying of Tropical’s CLIPS4SALE and CLIPS4SALE.COM Marks also demonstrates the strong secondary meaning in those Marks. See, e.g., DreamWorks L.L.C. v. Grantics, Case No. D2000-1269 (WIPO December 16, 2000), citing Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 615 (9th Cir. 1989) ('proof of copying strongly supports an inference of secondary meaning;' secondary meaning found based on plaintiff's extensive use and defendant's 'deliberate and close imitation' of mark); Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176, 1182 n.13 (7th Cir. 1989) ('proof of intentional copying is probative evidence of "secondary meaning"' and secondary meaning found where defendant intentionally copied plaintiff's trade dress); see also Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1016 (9th Cir. 1986)("Proof of exact copying, without any opposing proof, can be sufficient to establish secondary meaning"); RJR Foods, Inc. v. White Rocks Corp., 603 F.2d 1058 (2d Cir. 1979)(defendant's intentional copying constitutes evidence of secondary meaning).
Respondent’s Website is being used as a portal for Respondent’s infringement. Numerous panels have held that using a domain name confusingly similar to a complainant’s mark to link to the competitor’s website constitutes “bad faith” under the Policy. See, e.g. Edmunds.com v. Ultimate Search, Inc., WIPO Case No. D2001-1319 (February 1, 2002) (“[R]egistration and use of a domain name to redirect Internet users to websites of competing organizations constitutes bad faith registration and use under the Policy.”); Netwizards, Inc. v. Spectrum Enterprises, WIPO Case No. D2000-1768 (April 4, 2001) (“[R]egistration and continued use of the contested domain name for re-directing Internet users, i.e. particularly customers and potential customers of the Complainant, from the Complainant’s website to the website of . . . a company which directly competes with the Complainant, constitutes bad faith registration and use.”); Zwack Unicom Ltd v. Duna, WIPO Case No. D2000-0037 (March 10, 2000) (respondent’s linking to complainant’s competitor held to constitute bad faith); Oly Holigan, L.P. v. Private, Case No. FA0011000095940 (N.A.F. December 4, 2000) (finding bad faith where respondent used the disputed domain name to “redirect[] the Complainant’s consumers and potential consumers to commercial websites which are not affiliated with Complainant”); Marriott International, Inc. v. Kyznetsov, Case No. FA0009000095648 (N.A.F. October 24, 2000) (finding bad faith where respondent registered the domain name <marriottrewards.com> and used it to route internet traffic to another website that “promotes travel and hotel services . . . identical to the services offered by the Complainant”). Here, a review of Respondent’s Website clearly demonstrates that Respondent’s Website is an adult themed website displaying graphic photographs of women and targeted to the same customers as Tropical.
In light of the foregoing, Tropical respectfully submits that Respondent has both registered and used the Infringing Domain Name in bad faith and that the Infringing Domain Name should be transferred to Tropical according to the Rules.
B. Respondent failed to submit a Response in this proceeding.
Complainant Tropical MBC, LLC owns and operates the website resolving from the <clips4sale.com> domain name. Complainant provides adult-oriented entertainment media. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CLIPS4SALE.COM mark (e.g., Reg. No. 3,508,680; filed January 27, 2006; registered September 30, 2008).
Respondent R Patel registered the <povclips4sale.com> domain name on September 8, 2007. The disputed domain name resolves to a website that contains hyperlinks to Respondent’s website that provides competing adult-oriented entertainment 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 claims it has established rights in its CLIPS4SALE.COM mark. In Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) and Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panels held trademark registrations with the USPTO were sufficient to establish rights in a mark. Complainant provides evidence of its trademark registrations with the USPTO for its CLIPS4SALE.COM mark (e.g., Reg. No. 3,508,680; filed January 27, 2006; registered September 30, 2008). In Phoenix Mortgage Corp. v. Toggas, D2001-0101 (WIPO Mar. 30, 2001) and Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007), the panels concluded that the effective date of a complainant’s rights in a registered trademark with the USPTO is the filing date. Based on this precedent, the Panel determines Complainant has established Policy ¶4(a)(i) rights in its mark, dating back to January 27, 2006.
Complainant contends the <povclips4sale.com> domain name is confusingly similar to Complainant’s CLIPS4SALE.COM mark. In Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) and Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004), the panels found the addition of a generic term does not adequately distinguish a disputed domain name from a complainant’s mark. In this case, the disputed domain name combines Complainant’s entire mark with the generic term “pov.” Consequently, the Panel concludes this relatively minor alteration is not sufficient to distinguish the disputed domain name and the Panel holds Respondent’s <povclips4sale.com> domain name is confusingly similar to Complainant’s mark for the purposes of Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant claims Respondent does not have any rights or legitimate interests in any of the <povclips4sale.com> domain name. In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panel held the burden shifts to the respondent to prove it does have rights or legitimate interests when the complainant makes a prima facie case in support of its allegations under Policy ¶4(a)(ii). In this case, the Panel finds Complainant made a sufficient prima facie case. In Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000), the panel held a respondent’s failure to respond to the Complaint allows the Panel to infer a respondent does not have rights or legitimate interests in a disputed domain name. Out of an abundance of caution, this Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶4(c).
Complainant claims Respondent is not commonly known by the <povclips4sale.com> domain name. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) and IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006), the panels concluded a respondent is not commonly known by a disputed domain name if the WHOIS information did not provide any evidence of such a fact, if the complainant did not license the respondent to use complainant’s mark, and if the respondent failed to present any affirmative evidence. For the case at hand, the WHOIS information identifies the registrant of the disputed domain name as “R Patel,” which the Panel finds is not similar to the <povclips4sale.com> domain name and is not evidence Respondent is commonly known by the disputed domain name. Complainant claims Respondent is not authorized to use Complainant’s mark and Respondent is not affiliated with Complainant. Respondent has failed to respond and has failed to provide any affirmative evidence Respondent is commonly known by the disputed domain name. Thus, the Panel concludes Respondent is not commonly known by the disputed domain name under Policy ¶4(c)(ii).
Complainant argues Respondent’s use of the disputed domain name to link to Respondent’s competing business is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. When examining whether a respondent’s use is either a bona fide use or a legitimate noncommercial use, past panels, such as the panels in Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) and Florists’ Transworld Delivery v. Malek, FA 676433 (Nat. Arb. Forum June 6, 2006), have found that a respondent’s use of a disputed domain name to compete with a complainant is neither a bona fide use nor a legitimate noncommercial use. The Panel determines Respondent’s use of the disputed domain name to provide a hyperlink to Respondent’s competing website is not a bona fide offering of good or services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii) under the facts of this case.
The Panel finds Policy ¶4(a)(ii) satisfied.
According to Complainant, Respondent registered and uses the <povclips4sale.com> domain name in bad faith under Policy ¶4(b)(iii). In applying Policy ¶4(b)(iii), past panels in Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) and Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) held the use of a disputed domain name to resolve to a website that competes with the complainant’s business is evidence of bad faith registration and use. This Panel concludes under the facts of this case and because Respondent’s disputed domain name resolves to a website with links to Respondent’s competing website, Respondent registered and uses the <povclips4sale.com> domain name in bad faith pursuant to Policy ¶4(b)(iii).
Complainant further asserts Respondent registered and uses the <povclips4sale.com> domain name in bad faith under Policy ¶4(iv). In AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) and Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006), the prior panels determined a respondent registered and used a disputed domain name in bad faith under Policy ¶4(b)(iv) if the resolving website competed with the complainant’s business. Based on this precedent and the facts of this case (including the lack of a response), the Panel finds Respondent’s use of the disputed domain name, to resolve to a website that competes with Complainant’s adult-oriented entertainment business, is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered that the <povclips4sale.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: August 22, 2011
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