Ryalex, Inc. v. Hemang Infrasructure Private Limited / Hemang Infrasructure Private Limited
Claim Number: FA1111001414644
Complainant is Ryalex, Inc. (“Complainant”), represented by Jeffrey Sonnabend, New York, USA. Respondent is Hemang Infrasructure Private Limited / Hemang Infrasructure Private Limited (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snazz75.com>, registered with Tirupati Domains and Hosting Private Limited.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 8, 2011; the National Arbitration Forum received payment on November 8, 2011.
On November 11, 2011, TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED confirmed by e-mail to the National Arbitration Forum that the <snazz75.com> domain name is registered with TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED and that Respondent is the current registrant of the name. TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED has verified that Respondent is bound by the TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED 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 22, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 12, 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@snazz75.com. Also on November 22, 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 December 19, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant owns a service mark registration for the SNAZ75 mark (Reg. No. 3,931,040), registered March 15, 2011, with the United States Patent and Trademark Office (“USPTO”).
The mark is used by Complainant in connection with the operation of an Internet retail store marketing footwear, hosiery, lingerie and clothing.
Respondent acquired the <snazz75.com> domain name on or about September 26, 2011.
The domain name resolves to a website with links to third-party websites featuring adult-oriented content, as well as links to websites competing with Complainant’s shoe sales in competition with the SNAZ75 mark.
Respondent’s disputed <snazz75.com> domain name is confusingly similar to Complainant’s SNAZ75 mark.
Respondent is not commonly known by the disputed domain name.
Respondent is not authorized by Complainant to use the disputed domain name.
Respondent is not using the disputed domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent does not have any rights to or legitimate interests in the domain name <snazz75.com>.
Respondent registered and uses the <snazz75.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has rights in the SNAZ75 service mark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that a complainant had established rights to the MILLER TIME mark through its national trademark registrations). This is true without regard to whether Complainant’s rights in its mark arise in a jurisdiction other than that in which Respondent resides or does business. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether a complainant has registered its trademark in the country of a respondent’s residence, it being sufficient that that complainant can demonstrate rights in its mark in some jurisdiction).
Respondent’s <snazz75.com> domain name is confusingly similar to Complain-ant’s SNAZ75 service mark. The domain incorporates Complainant’s entire mark, although it is misspelled, and merely adds a generic top-level domain (“gTLD”). The addition of a single letter to Complainant’s mark in forming the domain does not distinguish the domain from the mark under the standards of Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding confusing similarity where a domain name differed from a trademark of another by only one letter); see also Granarolo S.p.A. v. Dinoia, FA 649854 (Nat. Arb. Forum Apr. 17, 2006) (finding the <granarolo.com> domain name confusingly similar to a complainant’s G GRANAROLO mark).
Similarly, Respondent’s addition of the gTLD “.com,” to Complainant’s mark in forming the contested domain does not distinguish the domain from the mark because every domain name is required to have a gTLD. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of a domain name such as “.net” or “.com” does not affect the domain name for purposes of determining whether it is identical or confusingly similar to the mark of another); see also 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 thus finds that Respondent’s <snazz75.com> domain name is con-fusingly similar to Complainant’s SNAZ75 service mark under Policy ¶ 4(a)(i).
Complainant asserts that Respondent has neither rights to nor legitimate inter-ests in the disputed <snazz75.com> domain name. Once a complainant makes out a prima facie case in support of this assertion, the burden shifts to a respon-dent to prove the contrary. 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.
To the same effect, see also Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech. Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005)
Complainant has made a prima facie showing in support of its assertions under this head of the Policy. Respondent, however, has failed to submit a Response to the Complaint. We are therefore free to presume that Respondent has no rights to or legitimate interests in the contested domain name under Policy ¶ 4(c)(ii). See, for example, Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000):
Failure of a respondent to come forward to [contest a complainant’s allegations] is tantamount to admitting the truth of [that] complainant’s assertions in this regard.
See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).
Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine if there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name, and that Respondent is not authorized by Complainant to use the disputed domain name. Moreover, the WHOIS record for the <snazz75.com> domain name identifies the registrant only as “Hemang Infrasructure Private Limited / Hemang Infrasructure Private Limited,” which does not resemble the contested domain name. On this record we conclude that Respondent is not commonly known by this disputed domain name so as to have demonstrated that it has rights to or legitimate interests in the domain within the meaning of Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name, and so had no rights to or legitimate interests in the domain under Policy ¶ 4(c)(ii), where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by that domain name).
We also observe that Complainant also contends, without objection from Re-spondent, that Respondent is not using the disputed domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use, in that the domain is used to feature links on the resolving website, some of which compete with Complainant in the retail shoe and clothing industry. We agree. Respondent’s use of the domain in the manner alleged in the Complaint neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was using the domain to operate a website containing links to various commercial websites competing with the business of a complainant, which the panel found not to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s use of a complainant’s mark to send Internet users to a website which displayed links, some of which resolved to the websites of a complainant’s competitors, was not a bona fide offering of goods or services).
Additionally, Respondent does not contest Complainant’s assertion that the website resolving from the contested domain name displays links to adult oriented third-party websites. This is also not either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain under Policy ¶¶ 4(c)(i) and 4(c)(iii). See Am. Online, Inc. v. Bates, FA 192595 (Nat. Arb. Forum Oct. 7, 2003):
Attempts to commercially benefit from a domain name that is con-fusingly similar to another's mark by linking the domain name to an adult-oriented website [is] evidence that the registrant lacks rights or legitimate interests in the domain name.
See also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's mark by creating a domain name to provide a link to an adult oriented website is not a legitimate or fair use).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s registration and use of the contested domain name as alleged in the Complaint disrupts Complainant’s business, and thus stands as evidence that Respondent registered and uses the domain in bad faith. See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use of disputed domain names pursuant to Policy ¶ 4(b)(iii) by using them to operate a search engine with links to websites featuring the products of a complainant and that complainant’s commercial competitors); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a domain name which was confusingly similar to the mark of another to attract Internet users to a directory website containing links to the websites of a complainant’s commercial competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Because the disputed domain name is confusingly similar to Complainant’s SNAZ75 service mark, it is evident that Respondent’s registration and use of the domain is an effort to take advantage of Internet users’ likely confusion as to the possibility of Complainant’s sponsorship of, or other affiliation with, the resolving website. In the circumstances here presented, we may comfortably presume that Respondent receives income in the form of click-through fees owing to the visits of Internet users to the websites resolving from the links featured on that site. This demonstrates bad faith registration and use of the domain under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where a respondent’s domain name resolved to a website that offered links to third-party websites offering services similar to those of a complainant’s services); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003):
Respondent's prior use of the … domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’
Finally, the disputed domain name displays links to websites which offer adult oriented material. This evidences bad faith registration and use of the domain under Policy ¶ 4(a)(iii). See CCA Indus., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26, 2000), and Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000), both finding that respondents acted in bad faith under Policy ¶ 4(a)(iii) where they registered and used disputed domain names which were associated with adult oriented material.
For all of these reasons, the Panel finds that Complainant’s obligations of proof under Policy ¶ 4(a)(iii) have been met.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <snazz75.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 23, 2011
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