Disabled American Veterans v.
NA N/A
Claim Number: FA0906001270268
PARTIES
Complainant is Disabled American Veterans (“Complainant”), represented by Daniel
T. Batten, of Greensfelder, Hemker & Gale, P.C.,
REGISTRAR
The domain name at issue is <dav.com>, registered with Enom, Inc.
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the
“Forum”) electronically on
On
On
A timely Response was received and determined to be complete on
A timely Additional Submission was received from the Complainant in
accordance with The Forum’s Supplemental Rule No. 7.
On
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
Complainant contends that the domain name is identical to Complainant’s
registered trademark, DAV. Complainant
further contends that Respondent has not used the domain name in connection
with any legitimate offering of goods or services and that Respondent is not
commonly known by the domain name. Complainant
further contends that Respondent registered the domain name for the primary
purpose of selling it. Complainant
contends that Respondent “is a known cybersqutter” who has engaged in a pattern
of bad faith registrations.
B.
Respondent
Respondent contends there has been no confusion between the services
which it offers and the services offered by the Complainant. Respondent denies he acquired the domain name
for the purpose of selling it, contending that Complainant has offered no
evidence to support this contention.
Respondent also contends that Complainant has failed to offer any
evidence to support the assertion that Respondent is a cybersquatter.
C.
Additional
Submissions
In its Additional Submission Complainant contends it is not its burden
to establish actual confusion between its trademark and Respondent’s domain
name. Complainant states that Respondent
has not denied that he knew of the Complainant when he registered the domain
name and that the domain name is being used to redirect Internet traffic to a
profit-making chat room.
FINDINGS
Complainant has
established rights in the DAV mark via its trademark registration with the
United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,620,088 issued
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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 rights in the DAV mark via its trademark registration with the
United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,620,088 issued
Complainant correctly alleges that
the <dav.com> domain name contains its DAV mark in its entirety followed by the
generic top-level domain (gTLD) “.com.”
It is well established that the addition of a gTLD is irrelevant to a
Policy ¶ 4(a)(i) analysis. Accordingly, the Panel finds that the <dav.com> domain
name is identical to Complainant’s DAV mark under Policy ¶ 4(a)(i). See SCOLA v. Wick, FA 1115109 (Nat. Arb.
Forum
The Panel
finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these allegations before the burden shifts to Respondent to prove it does have rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel finds Complainant has presented an adequate prima facie case to support its allegations.
The record supports Complainant’s assertion that
it has not granted Respondent any license to use its DAV mark. Furthermore, the WHOIS information associated
with the <dav.com> domain name lists Respondent as “NA N/A.”
Thus, there is no evidence in the record that Respondent is commonly
known by the <dav.com> domain name. Accordingly,
the Panel finds that Respondent lacks rights or legitimate interests in the
disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum
Furthermore, the Panel finds that Respondent
has not used the <dav.com> domain name for 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). Instead, the Respondent has used the <dav.com> domain
name to resolve to click-through advertising websites or redirect Internet
users to chat rooms. Neither of these
uses are sufficient to establish that Respondent has rights or legitimate
interests in the <dav.com> domain name under Policy ¶¶ 4(c)(i) or (iii). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum
Complainant alleges that Respondent
registered the <dav.com> domain name with the primary intent of reselling it for a substantial
profit.
Under Policy ¶ 4(b)(iv), a respondent is acting in bad faith when using a confusingly similar domain name to attract Internet users for commercial gain. Respondent’s use of the domain name to redirect Internet traffic to a profit-making chat room further establishes Respondent’s bad faith. See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dav.com> domain name be TRANSFERRED
from Respondent to Complainant.
Dated:
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