Social Control, LLC v. Rick washing / rwas
Claim Number: FA1209001464303
Complainant is Social Control, LLC (“Complainant”), represented by Maulin V. Shah of UDRPro, LLC, New York, USA. Respondent is Rick washing / rwas (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <socialcontrol.org>, registered with eNom, Inc.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 25, 2012; the National Arbitration Forum received payment on September 25, 2012.
On September 26, 2012, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <socialcontrol.org> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 September 27, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 17, 2012 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@socialcontrol.org. Also on September 27, 2012, 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 October 26, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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’s Allegations
B. Respondent
1. Respondent failed to submit a Response in this proceeding. The Panel notes that the <socialcontrol.org> domain name was registered by Respondent on April 16, 2011.
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."
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.
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.”).
Complainant asserts that it owns a trademark registration with the USPTO for the mark SOCIAL CONTROL (Reg. No. 3,780,954 registered Apr. 27, 2010). Complainant contends that it uses its mark for its digital creative agency specializing in interactive media, motion graphics, animation and visual effects for deploying groundbreaking experiences across multiple platforms. The Panel finds that Complainant’s trademark registration is sufficient for Complainant to establish rights in the SOCIAL CONTROL mark pursuant to Policy ¶ 4(a)(i).
As for the second prong of Policy ¶ 4(a)(i), Complainant asserts that Respondent’s <socialcontrol.org> domain name is identical to Complainant’s SOCIAL CONTROL mark. The Panel notes that Respondent’s disputed domain name simply removes the space between the terms of Complainant’s mark. The removal of a space is irrelevant under Policy ¶ 4(a)(i), as inclusion of a space in a domain name is impermissible. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names). Therefore, the Panel finds that Respondent’s disputed domain name is identical to Complainant’s SOCIAL CONTROL mark under Policy ¶ 4(a)(i).
Complainant alleges that Respondent is not commonly known by the disputed domain name and has not been given approval by Complainant to use the SOCIAL CONTROL mark in a domain name. Further, Complainant notes that the WHOIS information for the disputed domain name identifies “Rick washing / rwas” as the registrant, which bears no relevance to the term “Social Control”, and which is therefore indicative that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). Based on the foregoing, the Panel finds that Respondent is not commonly known by the <socialcontrol.org> domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Further, Complainant submits that Respondent’s disputed domain name resolves to a website displaying adult-oriented material and photographs, and contains links to a commercial adult-oriented website. Complainant contends that Respondent benefits commercially through its links to the commercial adult-oriented website. The Panel finds that Respondent’s use of the disputed domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Respondent incorporates Complainant’s exact mark in its domain name. From this, the Panel infers knowledge by Respondent of Complainant’s registered trademark. Further, Complainant contends that Respondent’s disputed domain name resolves to a website featuring adult-oriented content as well as links to a commercial adult-oriented website. This supports a finding of bad faith use and registration under Policy ¶ 4(a)(iii). See Microsoft Corp. v. Horner, D2002-0029 (WIPO Feb. 27, 2002) (holding that the respondent’s use of the complainant’s mark to post adult-oriented photographs and to publicize hyperlinks to additional adult-oriented websites evidenced bad faith use and registration of the domain name).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <socialcontrol.org> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: November 8, 2012
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