ADT US Holdings, Inc. v. Robert Seketa
Claim Number: FA1309001520241
Complainant is ADT US Holdings, Inc. (“Complainant”), represented by Scott R. Austin of VLP Law Group LLP, Florida, USA. Respondent is Robert Seketa (“Respondent”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adtdealers.com>, registered with Moniker Online Services, LLC.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 18, 2013; the National Arbitration Forum received payment on September 18, 2013.
On September 19, 2013, Moniker Online Services, LLC confirmed by e-mail to the National Arbitration Forum that the <adtdealers.com> domain name is registered with Moniker Online Services, LLC and that Respondent is the current registrant of the name. Moniker Online Services, LLC has verified that Respondent is bound by the Moniker Online Services, 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 September 19, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 9, 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@adtdealers.com. Also on September 19, 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 October 14, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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.
Complainant’s Contentions
Policy ¶ 4(a)(i)
Policy ¶ 4(a)(ii)
Policy ¶ 4(a)(iii)
Respondent registered the <adtdealers.com> domain name on November 11, 2003.
Respondent’s Contentions
Respondent did not submit a response.
1. Respondent’s <adtdealers.com> domain name is confusingly similar to Complainant’s ADT mark.
2. Complainant has failed to establish a prima facie case showing Respondent does not have any rights or legitimate interests in the <adtdealers.com> domain name.
3. Complainant failed to meet the burden of proof demonstrating that Respondent registered or used the <adtdealers.com> domain name 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."
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 states that it uses the ADT mark to provide security devices and alarm services to consumers and businesses. Complainant argues that it has registered the ADT mark with the USPTO (e.g., Reg. No. 710,708 registered January 31, 1961). The Panel agrees that USPTO registration is satisfactory evidence of Policy ¶ 4(a)(i) rights here, especially as both parties reside in the United States. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Complainant next alleges that Respondent has registered the <adtdealers.com> domain name, which merely adds the generic term “dealers” and the gTLD “.com” to the ADT mark. The Panel readily agrees that the gTLD “.com” is not relevant to this analysis of confusing similarity. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). In Novell, Inc. v. Taeho Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003), the panel found that descriptive terms do not in themselves differentiate a domain name without being distinctive. The Panel here finds that the <adtdealers.com> domain name is non-distinctive and merely implies “dealers” of ADT products, and as such is confusingly similar to the ADT mark under Policy ¶ 4(a)(i).
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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent is not commonly known as, or referred to as <adtdealers.com>. Respondent is identified in the WHOIS information of the <adtdealers.com> domain name as one “Robert Seketa.” Complainant claims to have not authorized, permitted, or licensed any use of the ADT mark to Respondent. The Panel agrees here that Respondent is not commonly known by the <adtdealers.com> domain name as there is no evidence in the record to support a connection between Respondent and the domain name. See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
Complainant generally states that Respondent promotes competing security services through this domain name. The Panel notes that on careful examination of the domain name’s resolving website, there is no competing business mentioned, nor do any hyperlinks or other advertisements promote rival companies of any sort. See Complaint, at Attached Ex. D. The content of the <adtdealers.com> domain name appears to be complaints and plights from consumers who have become weary of the aggressive and hard-line tactics employed by Complainant’s affiliates. See id. Although Complainant stresses the competing business operating as per Attached Exhibit E, the only logical chain provided that reasonably links this competing business with the complaints/gripe-posts on the <adtdealers.com> domain name’s website is that Respondent presumably operates both domain names independently. See id. at Attached Ex. E (noting that the listed contact of the competing business is “Robert G. Seketa,” the same as registrant of record for the <adtdealers.com> domain name).
The Panel holds that Complainant has not established a prima facie case in support of its arguments that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). See Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (Nat. Arb. Forum Aug. 24, 2006) (holding that the complainant did not satisfactorily meet its burden and as a result found that the respondent had rights and legitimate interests in the domain name under UDRP ¶ 4(a)(ii)); see also Workshop Way, Inc. v. Harnage, FA 739879 (Nat. Arb. Forum Aug. 9, 2006) (finding that the respondent overcame the complainant’s burden by showing it was making a bona fide offering of goods or services at the disputed domain name).
Respondent makes no contentions with regard to Policy ¶ 4(a)(ii).
However, the Panel notes that none of the content viewable through the <adtdealers.com> domain name appears to be competitive with the ADT mark. In fact, the domain name’s resolving website seems to suggest merely that Internet users should favor certain ADT dealers over other dealers. See Complaint, at Attached Ex. D. Although Respondent did not explicitly respond to the Complaint, the Panel considered the seemingly non-competitive nature of this domain name’s landing page in rendering its decision. See, e.g., RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (“The use of domain names for non-commercial purposes is a recognized method of proving rights and legitimate interests on the part of such user even when the use may cause some disadvantage or harm to other parties.”).
Although Complainant does not argue bad faith under any of the examples listed in Policy ¶ 4(b), Complainant may still prevail so long as it established bad faith through use, and at registration, in some manner. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”).
However, the Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
The Panel further finds that Respondent has not registered or used the <adtdealers.com> domain name in bad faith as if it finds that Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Societe des Produits Nestle S.A. v. Pro Fiducia Treuhand AG, D2001-0916 (WIPO Oct. 12, 2001) (finding that where the respondent has not attempted to sell the domain name for profit, has not engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks, is not a competitor of the complainant seeking to disrupt the complainant's business, and is not using the domain name to divert Internet users for commercial gain, lack of bona fide use on its own is insufficient to establish bad faith); see also Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish UDRP ¶ 4(a)(iii)).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <adtdealers.com> domain name remain with Respondent.
John J. Upchurch, Panelist
Dated: October 25, 2013
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