national arbitration forum

 

DECISION

 

Word of Life Christian Center, Inc. v. Designer Furniture

Claim Number:  FA0507000524654

 

PARTIES

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.

 

PANEL

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.

 

PROCEDURAL HISTORY

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

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.

 

FINDINGS

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.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

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.

 

Rights or Legitimate Interests

 

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.

 

Registration and Use in Bad Faith

 

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.

 

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 <moneycometh.net> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Judge Harold Kalina (Ret.), Panelist

Dated:  September 8, 2005

 

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