national arbitration forum

 

DECISION

 

Internacional de Destion, C.A. v. Purple Bucquet / Purple

Claim Number: FA1107001397579

 

PARTIES

Complainant is Internacional de Destion, C.A. (“Complainant”), represented by Patrick J. O'Connor of Harper Meyer Perez Hagen O'Connor Albert & Dribin LLP, Florida, USA.  Respondent is Purple Bucquet / Purple (“Respondent”), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <rumberanetwork.com>, registered with POWER BRAND CENTER CORP.

 

PANEL

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.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 7, 2011; the National Arbitration Forum received payment on July 7, 2011.

 

After numerous requests, the Registrar, POWER BRAND CENTER CORP, has not confirmed to the National Arbitration that the <rumberanetwork.com> domain name is registered with POWER BRAND CENTER CORP or that Respondent is the current registrant of the name.  Registrar’s non-compliance has been reported to ICANN.  The FORUM’s standing instructions are to proceed with this dispute.

 

On July 27, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 16, 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@rumberanetwork.com.  Also on July 27, 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 18, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 a response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.    Respondent’s <rumberanetwork.com> domain name is confusingly similar to Complainant’s RUMBERA mark.

 

2.    Respondent does not have any rights or legitimate interests in the <rumberanetwork.com> domain name.

 

3.    Respondent registered and used the <rumberanetwork.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Internacional de Destion, C.A., is a provider of radio broadcast services in Venezuela and worldwide under its RUMBERA mark.  Complainant holds a trademark registration with the Venezuelan Servicio Autónomo de la Propiedad Intelectual (“SAPI”) for its RUMBERA mark (Reg. No. P253943 registered July 30, 2004), which it received from its predecessor in interest, Rumbera Stereo 101.9 FM.

 

Respondent, Purple Bucquet / Purple, registered the <rumberanetwork.com> domain name on August 18, 2004.  The disputed domain name resolves to a parked website containing hyperlinks to Complainant’s competitors.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

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 determined that a complainant has established rights in a mark if the complainant can provide evidence of a trademark registration with a federal trademark authority.  In Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), and Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007), past panels have also held that a complainant is not required to register a trademark within the country where a respondent resides.  Complainant provides evidence of a trademark registration with the SAPI for its RUMBERA mark (Reg. No. P253943 registered July 30, 2004).  Complainant also provides evidence of a contract assigning Complainant the trademark rights in the RUMBERA mark from Complainant’s predecessor in interest.  Thus, the Panel concludes that Complainant has established rights in its RUMBERA mark under Policy ¶ 4(a)(i).

 

Respondent’s <rumberanetwork.com> domain name contains Complainant’s RUMBERA mark and simply attaches the generic term “network” and the gTLD “.com,” insufficient to distinguish the disputed domain name from Complainant’s mark.  See Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding that the addition of a generic term is not sufficient to differentiate a disputed domain name from a complainant’s mark.)  Similarly, previous panels have ignored the addition of a generic top-level domain (“gTLD”) in a Policy ¶ 4(a)(i) analysis, as seen in Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003), and Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003).  Therefore, the Panel finds that Respondent’s <rumberanetwork.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).

 

The Panel finds Policy ¶ 4(a)(i) is satisfied.

 

Rights or Legitimate Interests

 

Complainant alleges that Respondent does not have any rights or legitimate interests in the <rumberanetwork.com> domain name.  In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panel held that 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 that a respondent’s failure to respond to the Complaint allows the Panel to infer that a respondent does not have rights or legitimate interests in a disputed domain name.    However, 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 asserts that Respondent is not licensed or authorized to use Complainant’s RUMBERA mark.  The WHOIS information identifies the domain name registrant as “Purple Bucquet / Purple,” which the Panel determines is not similar to the disputed domain name.  Respondent has not responded to this case and has not, therefore, provided any evidence that it is commonly known by the disputed domain name.  Consequently, the Panel finds that Respondent is not commonly known by the <rumberanetwork.com> domain name pursuant to Policy ¶ 4(c)(ii).

 

Respondent uses the <rumberanetwork.com> domain name to resolve to a website that contains hyperlinks to Complainant’s competitors in the music and radio industries.  Previous panels have found, as they did in Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007), and Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007), that a respondent’s use of a disputed domain name to resolve to a parked website featuring hyperlinks to a complainant’s competitors is not a bona fide offering of goods or services or a legitimate or noncommercial use.  The Panel accordingly finds that Respondent’s use of the <rumberanetwork.com> domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). 

 

The Panel finds Policy ¶ 4(a)(ii) is satisfied.

 

Registration and Use in Bad Faith

 

Respondent uses its <rumberanetwork.com> domain name to resolve to a website that contains hyperlinks to Complainant’s competitors in the music and radio industries, disrupting Complainant’s business.  Internet users may access Complainant’s competitors instead of Complainant due to Respondent’s registration and use of the disputed domain name.  In Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), and St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), the panels held that a respondent registered and used a disputed domain name in bad faith when the respondent used the disputed domain name to resolve to a website containing hyperlinks to a complainant’s competitors, because such a use disrupts the business of a complainant.  Thus, the Panel finds that Respondent’s registration and use of the <rumberanetwork.com> domain name constitutes bad faith under Policy ¶ 4(b)(iii).

 

Prior panels have determined that a respondent has also registered and used a disputed domain name in bad faith by attempting to attract Internet users for commercial gain by creating confusion as to the complainant’s affiliation with a website containing hyperlinks to a complainant’s competitors, as seen in Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), and Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006).  Respondent’s <rumberanetwork.com> domain name resolves to a similar website and the Panel presumes that Respondent profits from the receipt of click-through fees.  Accordingly, the Panel concludes that Respondent’s registration and use of the disputed domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).

 

The Panel finds Policy ¶ 4(a)(iii) is satisfied. 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <rumberanetwork.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated:  August 24, 2011

 

 

 

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