national arbitration forum

 

DECISION

 

Stuart Zadel v. 21st Century Property Pty Ltd / Dennis Mcintyre

Claim Number: FA1306001503465

PARTIES

Complainant is Stuart Zadel (“Complainant”), Australia.  Respondent is 21st Century Property Pty Ltd / Dennis Mcintyre (“Respondent”), Australia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <stuartzadel.net>, registered with CRAZY DOMAINS FZ-LLC.

 

PANEL

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.

 

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 6, 2013; the National Arbitration Forum received payment on June 6, 2013.

 

On June 6, 2013, CRAZY DOMAINS FZ-LLC confirmed by e-mail to the National Arbitration Forum that the <stuartzadel.net> domain name is registered with CRAZY DOMAINS FZ-LLC and that Respondent is the current registrant of the name.  CRAZY DOMAINS FZ-LLC has verified that Respondent is bound by the CRAZY DOMAINS FZ-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 June 12, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 2, 2013 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@stuartzadel.net.  Also on June 12, 2013, 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 July 8, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

    1. Complainant, Stuart Zadel, is a professional speaker and wealth educator in Australia. Complainant’s “wealth education” includes topics such as property, business, shares, and Internet business, which it disseminates via books, electronic books, webinars, teleseminars, coaching, live events, workshops, and other media material.
    2. Complainant’s business is known by several brand names including STUART ZADEL SEMINARS and TGR SEMINARS.
    3. Complainant owns the <stuartzadel.com> domain name, and the <stuartzadel.com.au> domain name.
    4. The disputed domain name is identical to Complainant’s mark and a recognized mark of Complainant’s business.
    5. Respondent has no rights or legitimate interests in the disputed domain name.

                                          i.    Complainant never granted permission to Registrant nor anyone related to Respondent to use its name.

                                         ii.    Respondent is using the domain name to divert business by ranking highly on Google and by inviting persons reading the material to click through to another webpage created by Respondent, the publisher of the magazine “Think & Grow Rich Inc.” and a direct competitor in the wealth education industry.

    1. Respondent registered the disputed domain name in bad faith.

                                          i.    Respondent is a competitor trying to divert business away from Complainant through the use of a domain name that will come up on Google searches when the public is looking for Complainant on the Internet.

                                         ii.    Respondent is using the domain name to misleadingly divert customers to another website with intent for commercial gain.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Stuart Zadel, is a professional speaker and wealth educator in Australia. Complainant’s “wealth education” includes topics such as property, business, shares, and Internet business, which it disseminates via books, electronic books, webinars, teleseminars, coaching, live events, workshops, and other media material. Complainant’s business is known by several brand names including STUART ZADEL SEMINARS and TGR SEMINARS.

 

Respondent, 21st Century Property Pty Ltd / Dennis Mcintyre, registered the <stuartzadel.net> domain name on September 24, 2012. Respondent is using the domain name to divert business the webpage of a competitor of Complainant.

 

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."

 

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.”).

 

Identical and/or Confusingly Similar

 

Complainant argues that it is a professional speaker and wealth educator in Australia.  Complainant’s business is known by a number of different brand names, including STUART ZADEL SEMINARS and TGR SEMINARS. Complainant claims that it provides wealth education in the areas of property, business, shares, and Internet business in the form of books, eBooks, webinars, teleseminars, coaching, live events, workshops, and other products. Although Complainant has not registered its STUART ZADEL SEMINARS or TGR SEMINARS marks with a trademark agency, Policy ¶ 4(a)(i) does not require the registration of a mark with a trademark agency, so long as common law rights in the mark are shown. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark).

 

As Complainant has established secondary meaning in the STUART ZADEL SEMINARS mark, Complainant has shown common law rights in the mark pursuant to Policy ¶ 4(a)(i). See Enfinger Dev., Inc. v. Montgomery, FA 370918 (Nat. Arb. Forum Feb. 16, 2005) (finding that the complainant had common law rights in the McMULLEN COVE mark because the complainant provided sufficient evidence that the mark had acquired secondary meaning, including development plans, correspondence with government officials, and newspaper articles featuring the mark). Complainant’s business operates nationally and internationally and is recognized as a leading wealth education company in Australia.

 

The disputed domain name contains the dominant words from Complainant’s mark. Accordingly, the Panel finds that Respondent’s <stuartzadel.net> domain name is confusingly similar to Complainant’s STUART ZADEL SEMINARS mark pursuant to Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).

 

Complainant asserts that it never granted permission to Registrant nor anyone related to Respondent to use its name. Complainant argues that Respondent has no association with the name STUART ZADEL or STUART ZADEL SEMINARS and no reason to be using the disputed domain name other than to attract people searching for Complainant on the Internet. Complainant contends that at no time has Respondent been known by Complainant’s name. In IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006), the panel found that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name. Accordingly, the Panel finds that Respondent is not commonly known by the <stuartzadel.net> domain name under Policy ¶ 4(c)(ii).

 

Complainant argues that Respondent is using the domain name to divert business by attempting to rank Respondent’s own website highly on Google and by inviting persons reading the material to click through to another webpage created by Respondent, the publisher of the magazine “Think & Grow Rich Inc.,” who is also a direct competitor in the wealth education industry. Complainant also contends that Respondent uses the disputed domain name to defame and discredit him. The Panel finds that since Respondent is a competitor in the industry, and diverts users to its own website, Respondent’s use of the <stuartzadel.net> domain name is not a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See 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).

 

Registration and Use in Bad Faith

 

Complainant alleges that Respondent is a competitor trying to divert business away from Complainant by maintaining a domain name that appears readily on Google search results when the public looks for Complainant on the Internet. Prior panels have found that a respondent’s use of a domain name to divert business away from a complainant disrupts Complainant’s business. See Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion). Therefore, the Panel finds that Respondent’s use of the <stuartzadel.net> domain name disrupts Complainant’s business, demonstrating bad faith use and registration under Policy ¶ 4(b)(iii).

 

Complainant argues that Respondent uses the domain name to misleadingly divert customers to another website with intent for commercial gain. Complainant contends that the content of the webpage on the disputed domain leaves no doubt that Respondent seeks to encourage persons, who would otherwise be looking for Complainant’s business on the Internet, to do business with Complainant’s competitor trading under the name “Think & Grow Rich Inc.” In MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000), the panel found 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. Therefore, the Panel finds that Respondent’s competing use of the <stuartzadel.net> domain name to attract Internet users to its own website for commercial gain constitutes bad faith use and registration under Policy ¶ 4(b)(iv).

 

DECISION

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

 

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

 

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  July 23, 2013

 

 

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