Word of Life Christian Center, Inc. v.
Designer Furniture
Claim Number: FA0507000524654
Complainant is Word of Life Christian Center, Inc. (“Complainant”),
represented by William L. Caughman, III
of Kean, Miller, Hawthorne, D'Armond,
McCowan & Jarman, L.L.P., P.O. Box 3513, Baton Rouge, LA 70821. Respondent is Designer Furniture (“Respondent”), 1096 Bridge Mill Ave, Canton,
Georgia 30114.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <moneycometh.net>,
registered with Go Daddy Software, 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.
Judge
Harold Kalina (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on July
26, 2005; the National Arbitration Forum received a hard copy of the Complaint
on July 29, 2005.
On
July 26, 2005, Go Daddy Software, Inc. confirmed by e-mail to the National
Arbitration Forum that the <moneycometh.net>
domain name is registered with Go Daddy Software, Inc. and that Respondent is
the current registrant of the name. Go Daddy Software, Inc. has verified that
Respondent is bound by the Go Daddy Software, 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
August 1, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 22, 2005 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@moneycometh.net by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
August 30, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed Judge Harold
Kalina (Ret.) 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 <moneycometh.net> domain name is identical to Complainant’s
MONEY COMETH mark.
2. Respondent does not have any rights or
legitimate interests in the <moneycometh.net>
domain name.
3. Respondent registered and used the <moneycometh.net> domain name in
bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Word of Life Christian Center, Inc., has registered the MONEY COMETH mark with
the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,451,293
issued May 15, 2001). Complainant has used the MONEY COMETH mark to promote its
products and services.
Respondent
registered the <moneycometh.net> domain
name on November 18, 2003. Respondent’s
domain name does not resolve to an active website.
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
asserts that it has established rights in the MONEY COMETH mark through
registration with the USPTO. See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal
trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004)
(“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's
rights in the mark.”).
Additionally,
the Panel finds that Respondent’s <moneycometh.net>
domain name is identical to Complainant’s MONEY COMETH mark pursuant to
Policy ¶ 4(a)(i), as the domain name fully incorporates the mark and merely
adds the generic top-level domain “.net.”
See Little Six, Inc. v. Domain For
Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that
<mysticlake.net> is plainly identical to the complainant’s MYSTIC LAKE
trademark and service mark); see also
Nike, Inc. v. Coleman, D2000-1120 (WIPO Nov. 6, 2000) (finding that the
domain name <nike.net> is identical to the complainant’s famous NIKE
mark).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Respondent does
not have rights or legitimate interests in the <moneycometh.net> domain name. When a complainant establishes a prima facie case pursuant to Policy ¶ 4(a)(ii), the burden shifts
to the respondent to prove that it has rights or legitimate interests. Due to Respondent’s failure to respond to
the Complaint, the Panel infers that Respondent does not have rights or
legitimate interests in the disputed domain name. See Do The Hustle, LLC v.
Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once the
complainant asserts that the respondent does not have rights or legitimate
interests with respect to the domain, the burden shifts to the respondent to
provide credible evidence that substantiates its claim of rights or legitimate
interests in the domain name); see also
Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov.
28, 2000) (finding that, under certain circumstances, the mere assertion by the
complainant that the respondent does not have rights or legitimate interests is
sufficient to shift the burden of proof to the respondent to demonstrate that
such rights or legitimate interests do exist); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar.
9, 2000) (finding that by not submitting a response, the respondent has failed
to invoke any circumstance which could demonstrate any rights or legitimate
interests in the domain name).
Moreover,
Respondent is not commonly known by the <moneycometh.net>
domain name. Thus, the Panel
concludes that Respondent has not established rights or legitimate interests in
the disputed domain name pursuant to Policy ¶ 4(c)(ii). See
Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14,
2000) (finding no rights or legitimate interest where respondent was not
commonly known by the mark and never applied for a license or permission from
complainant to use the trademarked name); see
also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5,
2001) (finding no rights or legitimate interests because respondent is not
commonly known by the disputed domain name or using the domain name in
connection with a legitimate or fair use); see
also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum
Aug. 29, 2000) (finding that the respondent has no rights or legitimate
interests in domain names because it is not commonly known by the complainant’s
marks and the respondent has not used the domain names in connection with a bona fide offering of goods and services
or for a legitimate noncommercial or fair use).
Furthermore,
Respondent is not making any use of the <moneycometh.net>
domain name, as it does not resolve to an active website. The Panel does not consider such nonuse a
use in connection with a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i), nor is it a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000)
(finding no rights or legitimate interests where the respondent failed to
submit a response to the complaint and had made no use of the domain name in
question); see also Melbourne IT Ltd. v.
Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate
interests in the domain name where there is no proof that the respondent made
preparations to use the domain name or one like it in connection with a bona
fide offering of goods and services before notice of the domain name dispute,
the domain name did not resolve to a website, and the respondent is not
commonly known by the domain name).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds
that Respondent registered the <moneycometh.net>
domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has
not made any use of the disputed domain name since registering it. See
Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov.
28, 2000) (finding that merely holding an infringing domain name without active
use can constitute use in bad faith); see
also Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000)
(finding that the respondent made no use of the domain name or website that
connects with the domain name, and that passive holding of a domain name
permits an inference of registration and use in bad faith).
Furthermore,
Respondent registered the <moneycometh.net>
domain name with actual or constructive knowledge of Complainant’s rights in
the MONEY COMETH mark due to Complainant’s registration of the mark with the
USPTO. Registration of a domain name
that is confusingly similar to another’s mark despite actual or constructive
knowledge of the mark holder’s rights in the mark is evidence of bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys.,
FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of
bad faith, when the respondent reasonably should have been aware of the
complainant’s trademarks, actually or constructively.”); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct.
4, 2002) (“[T]he complainant’s OXICLEAN mark is listed on the Principal
Register of the USPTO, a status that confers constructive notice on those
seeking to register or use the mark or any confusingly similar variation
thereof.”).
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 <moneycometh.net>
domain name be TRANSFERRED from
Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated:
September 8, 2005
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