The Rolf Institute of Structural Integration v. Scott Burd
Claim Number: FA1811001818347
Complainant is The Rolf Institute of Structural Integration (“Complainant”), represented by Kathleen S. Ryan of The Ollila Law Group LLC, Colorado, USA. Respondent is Scott Burd (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <therolfingburds.com>, registered with Godaddy.Com, LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 28, 2018; the Forum received payment on November 28, 2018.
On November 29, 2018, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <therolfingburds.com> domain name is registered with Godaddy.Com, Llc and that Respondent is the current registrant of the name. Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, 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 December 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 2018 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@therolfingburds.com. Also on December 5, 2018, 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 December 31, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 be transferred from Respondent to Complainant.
A. Complainant
Complainant is the owner of the ROLFING trademark and uses the mark in connection with the following goods and services: manipulating the deep connective tissue of the body to achieve structural alignment; articles, pamphlets and brochures regarding the structural alignment of the body; educational services, namely conducting classes, seminars, courses, workshops in the field of bodywork and structural integration and distributing course materials therewith; development and dissemination of educational materials of others in the field of bodywork and structural integration; and training persons in a technique of deep connective tissue manipulation. Complainant has rights in the ROLFING mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,118,481, registered May 15, 1979). See Amend. Compl. Annex B. Respondent’s <therolfingburds.com> domain name is confusingly similar to Complainant’s mark as it adds the terms “the” and “burds” (in reference to Respondent’s last name) along with the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <therolfingburds.com> domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS information lists Respondent as “Scott Burd.” See Amend. Compl. Annex C. While Complainant previously licensed use of the mark to Respondent, that relationship has since ended and Complainant does not currently authorize, license, or otherwise permit Respondent to use the mark for any purpose. See Amend. Compl. Annexes D & F. Further, Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the content of Respondent’s website directly advertises services in direct competition with Complainant. See Amend. Compl. Annex E.
Respondent registered and uses the <therolfingburds.com> domain name in bad faith. Respondent was a former licensee of Complainant and was previously authorized to use the ROLFING mark, however that authorization has since been revoked. See Amend. Compl. Annexes D & F. Further, Respondent’s use of the domain name to provide competing services disrupts Complainant’s business by intentionally diverting customers away from Complainant’s legitimate business and to Respondent’s website. See Amend. Compl. Annex E. Additionally, given Respondent’s prior affiliation with Complainant and the substantial fame associated with the ROLFING mark, Respondent was undoubtedly aware of Complainant’s rights in the ROLFING mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent did send an email to the Forum dated December 26, 2018 wherein it stated, in its entirety as follows:
We have taken down the website and changed the name of the business. It is no longer active and no longer references “rolfing.”
Respondent registered the disputed domain name on July 30, 2011.
The Panel finds that Respondent’s non-responsive Response in the form of an email dated December 26, 2018 to the Forum constitutes an acquiescence to the transfer of the disputed domain name. As such, the Panel hereby orders the immediate transfer of the disputed domain name from Respondent to 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."
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 Panel finds that Respondent’s non-responsive Response in the form an email communication to the Forum on December 26, 2018 constitutes an acquiescence to the transfer of the disputed domain name. As such, the Panel orders the immediate transfer of the disputed domain name and forgoes a full, three-factor analysis in this matter.
Having acquiesced to the transfer, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <therolfingburds.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: December 31, 2018
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