The Rolf Institute of Structural Integration v. Ida Homan
Claim Number: FA1708001742724
Complainant is The Rolf Institute of Structural Integration (“Complainant”), represented by Kathleen S. Ryan of The Ollila Law Group LLC, Colorado, USA. Respondent is Ida Homan (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adamsrolfingnyc.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 1, 2017; the Forum received payment on August 1, 2017.
On August 3, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <adamsrolfingnyc.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 August 4, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 24, 2017 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@adamsrolfingnyc.com. Also on August 4, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On August 25, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 registrations be cancelled.
A. Complainant
Complainant states that it is a global provider of goods and services: manipulating the deep connective tissues of the body to achieve structural alignment; articles, pamphlets and brochures regarding the structural alignment of the body; education services in the field of bodywork and structural alignment; and training in a technique of deep connective tissue manipulation. Complainant uses the ROLFING mark in connection with its business practices. Complainant registered the ROLFING mark in the United States in 1979. Complainant also registered the ROLFING mark with multiple government agencies throughout North and South America, Europe, Asia, Africa, and Australia.
Complainant alleges that the disputed domain name is confusingly similar to its mark because it incorporates the mark in its entirety, adding the descriptive word “Adams,” the geographic abbreviation “NYC,” and the “.com” generic top level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the ROLFING mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain name. The disputed domain name resolves to an online clothing retail website, offering goods and services unrelated to Complainant’s business. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. The disputed domain name disrupts Complainant’s business by diverting internet users to Respondent’s website presumably for Respondent’s commercial gain. The disputed domain name is registered using false contact information (the mailing address is not a valid mailing address). Respondent registered the domain name with at least constructive knowledge of Complainant and its rights to the ROLFING mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ROLFING, with rights dating back to at least 1979.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain to point to an online clothing retail website, offering goods and services unrelated to Complainant’s business.
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(f), 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 (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.”).
The disputed domain name incorporates Complainant’s mark in its entirety, adding the descriptive word “Adams,” the geographic abbreviation “NYC,” and the “.com” gTLD. A confusing similarity exists where a disputed domain name contains a complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016); see also AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000) (“common geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights.”). Hence, the Panel finds that the disputed domain name <adamsrolfingnyc.com> is confusingly similar, in the sense of the Policy, to Complainant’s ROLFING mark.
Complainant has not authorized or licensed Respondent to use the ROLFING mark in any regard, nor is Respondent affiliated with Complainant. Where “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name,” panels have determined that Policy ¶ 4(c)(ii) does not apply, see Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003) (“[g]iven the WHOIS contact information for the disputed domain [name],” the Panel may infer that “Respondent . . . is not commonly known by the [disputed] name . . . in any derivation.”). The WHOIS information associated with this case identifies Respondent as “Ida Homan.” Consequently, the Panel finds that Respondent is not commonly known by the disputed domain name.
Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. The disputed domain name resolves to an online clothing retail website, offering goods and services unrelated to Complainant’s business. This is evidence of a lack of rights and legitimate interests per Policy ¶¶ 4(c)(i) & (iii). See Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (ForumOct. 17, 2003) (“Respondent's use of a domain name confusingly similar to [c]omplainant’s mark to divert Internet users to websites unrelated to [c]omplainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also U.S. Franchise Sys., Inc. v. Howell, FA 152457 (Forum May 6, 2003). Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name resolves to an online clothing retailer unrelated to Complainant’s business. This disrupts Complainant’s business by diverting internet users to Respondent’s website for Respondent’s commercial gain, in violation of Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Speedo Holdings B.V. v. Tyrone L Glenn-Bus, D2003-0440 (WIPO, July 30, 2003); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Forum Nov. 21, 2002). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
The Panel notes that Complainant has not requested that the disputed domain name be transferred to it. Complainant has requested that the disputed domain name be cancelled.
Accordingly, it is Ordered that the <adamsrolfingnyc.com> domain name be CANCELLED.
Richard Hill, Panelist
Dated: August 25, 2017
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