Good Sam Enterprises, LLC v. Lawrence Green
Claim Number: FA1111001414316
Complainant is Good Sam Enterprises, LLC (“Complainant”), represented by Bernard R. Gans of Jeffer Mangels Butler & Mitchell LLP, California, USA. Respondent is Lawrence Green (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rvsearchusa.com>, registered with Spot Domain LLC.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 4, 2011; the National Arbitration Forum received payment on November 10, 2011.
On November 7, 2011, Spot Domain LLC confirmed by e-mail to the National Arbitration Forum that the <rvsearchusa.com> domain name is registered with Spot Domain LLC and that Respondent is the current registrant of the name. Spot Domain LLC has verified that Respondent is bound by the Spot Domain LLC 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 November 10, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 30, 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@rvsearchusa.com. Also on November 10, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 December 7, 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 <rvsearchusa.com> domain name is confusingly similar to Complainant’s RV SEARCH mark.
2. Respondent does not have any rights or legitimate interests in the <rvsearchusa.com> domain name.
3. Respondent registered and used the <rvsearchusa.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Good Sam Enterprises, LLC, is a recreational vehicle (“RV”) and parts distributor. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,079,927 registered July 15, 1997). Complainant uses the mark in conjunction with its web-based sale and service of RVs and RV parts through the <rvsearch.com> domain name.
Respondent, Lawrence Green, registered the disputed domain name on February 2, 2006. The disputed domain name resolves to a website offering RV’s for sale, a use that competes directly with Complainant’s business.
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 has established its rights in the RV SEARCH mark by registering it with USPTO (e.g., Reg. No. 2,079,927 registered July 15, 1997). Complainant has submitted sufficient evidence to verify that it is the owner of the registrations duly issued by the USPTO. Therefore, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(i) with regards to its rights in the RV SEARCH mark. See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office); see also Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”).
Complainant claims that Respondent’s <rvsearchusa.com> domain name is confusingly similar to its RV SEARCH mark. The disputed domain name includes the entire mark, only removing the space between the terms while adding the generic top-level domain (“gTLD”) “.com” and the geographic identifier “USA.” The Panel finds that the changes made to Complainant’s mark to form Respondent’s disputed domain name do not sufficiently differentiate the two, making them confusingly similar under Policy ¶ 4(a)(i). See American Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Skype Ltd. v. Sacramento, FA 747948 (Nat. Arb. Forum Aug. 30, 2006) (“The addition of the geographic term [“Brasil”] does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i).”).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant has made, what the Panel finds to be, a prima facie case against Respondent indicating that Respondent lacks rights or legitimate interests in the disputed domain name. Because of Complainant’s successful prima facie showing, Respondent now bears the burden of proving that it has rights or legitimate interests in the disputed domain name. 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.”). Having failed to file a Response in this matter, Respondent has given the Panel the opportunity to assume that it lacks rights or legitimate interests in the disputed domain name. See American 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, before making such an assumption the Panel will examine the entire record and make findings according to, and in compliance with, the provisions provided in Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the disputed domain name. Respondent has not offered any evidence to oppose Complainant’s argument. The WHOIS information identifies the registrant of the disputed domain name as “Lawrence Green.” The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(i) based upon the WHOIS information and the lack of any contradictory evidence in the record. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant also argues that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Respondent’s disputed domain name resolves to a website offering RV’s for sale. Complainant is also in the business of selling RVs, so Respondent’s use of the disputed domain name is deemed competitive by the Panel. Therefore, the Panel finds that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Florists’ Transworld Delivery v. Malek, FA 676433 (Nat. Arb. Forum June 6, 2006) (holding that the respondent’s use of the <ftdflowers4less.com> domain name to sell flowers in competition with the complainant did not give rise to any legitimate interest in the domain name); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Complainant alleges that Respondent’s use of the disputed domain name disrupts its business. The disputed domain name resolves to a website offering RV’s for sale in direct competition with Complainant’s own product and services offerings. Internet users may be looking for Complainant, arrive at Respondent’s website, and then purchase goods from Respondent instead of Complainant. The Panel finds that this use clearly disrupts Complainant’s business and provides affirmative evidence of Respondent’s bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)).
Complainant also alleges that Respondent has registered and is using the disputed domain name for its own commercial gain, constituting bad faith registration and use. Respondent’s disputed domain name resolves to a website where Internet users may purchase RVs. Presumably, Respondent charges for the sale of these RVs to generate revenue. The Panel finds that using the confusingly similar domain name to offer competing services for commercial gain constitutes bad faith registration and use under Policy ¶ 4(b)(iv) on the part of Respondent. See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark); see also Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rvsearchusa.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 19, 2011
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