Alienware Corporation v. Optimize My Site
Claim Number: FA0910001290038
Complainant is Alienware Corporation (“Complainant”), represented by Steven
M. Levy,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <alienlaptops.com>, registered with Godaddy.com, Inc.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 16, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 20, 2009.
On October 19, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <alienlaptops.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 27, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 16, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@alienlaptops.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 19, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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." 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:
1. Respondent’s <alienlaptops.com> domain name is confusingly similar to Complainant’s ALIENWARE mark.
2. Respondent does not have any rights or legitimate interests in the <alienlaptops.com> domain name.
3. Respondent registered and used the <alienlaptops.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alienware Corporation, is a leader in producing computers designed for gaming and other graphically intense applications. Complainant owns two trademark registrations for the ALIENWARE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., 2,616,204 issued September 10, 2002).
Respondent registered the <alienlaptops.com> domain name on May 2, 2005. Respondent’s disputed domain name resolves to a website displaying third-party links to websites offering computers in competition with Complainant.
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 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.”).
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.
Complainant has established rights in the ALIENWARE mark
pursuant to Policy ¶ 4(a)(i) through registrations of the mark with the USPTO
(e.g., 2,616,204 issued September 10, 2002).
See Miller Brewing
Complainant argues that Respondent’s <alienlaptops.com> domain name is confusingly
similar to Complainant’s ALIENWARE mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains the
dominant portion of Complainant’s mark, adds the term “laptops,” and adds the
generic top-level domain (“gTLD”) “.com.”
The Panel finds that the dominant portion of a complainant’s mark in a
disputed domain name creates a confusing similarity between the disputed domain
name and the mark. See Maple Leaf Sports
& Entm’t Ltd. v. Toronto Maple Leafs!, D2000-1510 (Jan. 24, 2001)
(finding that the domain name <leafs.org> is confusingly similar to the
complainant’s marks, where the complainant holds many trademarks that contain
the term “LEAFS”); see also WestJet Air Ctr., Inc. v. W. Jets LLC,
FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com>
domain name is confusingly similar to the complainant’s mark, where the
complainant holds the
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have any
rights or legitimate interests in the disputed domain name. Once a prima
facie case has been established by Complainant, the burden then shifts to
Respondent to demonstrate its rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c).
The Panel finds that Complainant has adequately established a prima facie case in these
proceedings. Since Respondent has failed
to respond to the allegations against it, the Panel may assume that Respondent
lacks any rights or legitimate interests in the disputed domain name. See
Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006)
(finding the “complainant must first make a prima facie case that [the]
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show
it does have rights or legitimate interests.”); see also Am. Express Co.
v. Fang Suhendro, FA 129120 (Nat. Arb.
Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is
presumed that Respondent lacks all rights and legitimate interests in the
disputed domain name.”).
Complainant contends that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). The relevant WHOIS information identifies the registrant of the disputed domain name as “Optimize My Site” and there is no evidence in the record to suggest that Respondent is otherwise commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed 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 disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent’s disputed
domain name resolves to a website featuring advertisements and links relating
to Complainant’s competitors in the computer industry. The Panel may
infer that Respondent profits through the generation of click-through fees from
the links to Complainant’s competitors. Therefore, the Panel finds that
Respondent’s use of the disputed domain name is not in connection with a bona
fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use of the disputed domain name under Policy ¶
4(c)(iii). See 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality
Domains For
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website that
promotes Complainant’s competitors in the computer industry through
click-through links. Such an activity
clearly disrupts Complainant’s business, as Internet users seeking Complainant’s
products will be redirected to Complainant’s competitors. This qualifies as bad faith registration and
use under Policy ¶ 4(b)(iii). See
Respondent is using the disputed domain name to intentionally divert
Internet users to the associated websites, which display third-party links to
competing websites. In cases such as
this, the Panel presumes that Respondent is collecting click-through fees and
attempting to profit by creating a likelihood of confusion between
Complainant’s ALIENWARE mark and the confusingly similar disputed domain
name. The Panel finds that Respondent’s
use of the disputed domain name is further evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v.
Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the
respondent engaged in bad faith registration and use by using a domain name
that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
complainant); see
also
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alienlaptops.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: December 2, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum