Hallelujah Acres, Inc. v. Domainqueue c/o
Domain Admin
Claim Number: FA0509000558207
Complainant is Hallelujah Acres, Inc. (“Complainant”),
represented by Neil M. Batavia of Dority & Manning,
Post Office Box 1449, Greenville, SC, 29602-1449. Respondent is Domainqueue c/o Domain Admin (“Respondent”), 2346 NW Clarion Suite 303, New City,
NY, 10956.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <hallelujahacres.com>, registered with Vivid
Domains, Inc.
The
undersigned certifies that she has acted independently and impartially and that
to the best of her knowledge she has no known conflict in serving as Panelist
in this proceeding. Hon. Carolyn Marks
Johnson sits as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically September
9, 2005; the National Arbitration Forum received a hard copy of the Complaint September
13, 2005.
On
September 16, 2005, Vivid Domains, Inc confirmed by e-mail to the National
Arbitration Forum that the <hallelujahacres.com> domain name is
registered with Vivid Domains, Inc and that Respondent is the current
registrant of the name. Vivid Domains,
Inc verified that Respondent is bound by the Vivid Domains, Inc registration
agreement and thereby has agreed to resolve domain-name disputes brought by
third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution
Policy (the "Policy").
On
September 19, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of October 10, 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@hallelujahacres.com by
e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
October 17, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn
Marks Johnson as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the National Arbitration Forum 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. The domain name that Respondent
registered, <hallelujahacres.com>, is identical to Complainant’s
HALLELUJAH ACRES mark.
2. Respondent has no rights to or legitimate
interests in the <hallelujahacres.com> domain name.
3. Respondent registered and used the <hallelujahacres.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant, Hallelujah Acres, Inc., provides education,
products, services and other resources to assist people in improving
health. Complainant holds a
registration with the United States Patent and Trademark Office (“USPTO”) for
the HALLELUJAH ACRES mark (Reg. No. 2,077,460 issued July 8, 1997). Complainant began using the mark in 1989 in
association with goods and services relating to books and newletters dealing
with health, nutrition and biblical information.
Complainant also operates a website at the <hacres.com> domain
name, which it registered on June 11, 1997.
Respondent registered the <hallelujahacres.com> domain name August 31, 2005. The domain name resolves to a website that
displays links to various third-party websites offering products and services
that compete with those of 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
will draw such inferences as the Panel 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 Complainant to 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
established using extrinsic proof in this proceeding that it has rights in the
HALLELUJAH ACRES mark by registering the mark with the USPTO. See 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.”); see also 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.”).
The <hallelujahacres.com>
domain name is comprised of Complainant’s entire HALLELUJAH ACRES mark and the
generic top-level domain name (“gTLD”) “.com.”
The addition of a gTLD is irrelevant in determining similarity under
Policy ¶ 4(a)(i), because domain name registrants are required to add a gTLD or
its equivalent to register a domain name.
Thus, because the gTLD is the only difference between the domain name
and the mark, the Panel finds that the disputed domain name is identical to
Complainant’s mark. See Busy
Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding
that "the addition of the generic top-level domain (gTLD) name ‘.com’
is . . . without legal significance since use of a gTLD is
required of domain name registrants"); see also Gardline Surveys
Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The
addition of a top-level domain is irrelevant when establishing whether or not a
mark is identical or confusingly similar, because top-level domains are a
required element of every domain name.”).
Thus, the Panel
finds that Complainant satisfied Policy ¶ 4(a)(i).
The Policy
requires Complainant to satisfy the initial burden of proving that it has
rights and that Respondent lacks rights to and legitimate interests in the
disputed domain name. In Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May
14, 2001), the panel held:
Proving
that the Respondent has no rights or legitimate interests in respect of the
Domain Name requires the Complainant to prove a negative. For the purposes of
this sub paragraph, however, it is sufficient for the Complainant to show a
prima facie case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.
Id.; see also Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that where the
complainant has asserted that the respondent has no rights or legitimate
interests with respect to the domain name it is incumbent on the respondent to
come forward with concrete evidence rebutting this assertion because this
information is “uniquely within the knowledge and control of the
respondent”). Having found that
Complainant has met its initial burden by establishing a prima facie
case, the Panel will now analyze whether Respondent has met its burden to
establish rights or legitimate interests in the disputed domain name under
Policy ¶ 4(c).
Complainant
argues that Respondent is not commonly known by the <hallelujahacres.com>
domain name and that this is evidenced by the fact that Respondent is
identified as “Domainqueue” in the WHOIS information for the disputed domain
name. Respondent failed to respond and
has, therefore, not contested Complainant’s assertions. The Panel, therefore, accepts Complainant’s
contentions and finds that Respondent has not established rights or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Am.
W. Airlines, Inc. v. Paik, FA 206396 (Nat.
Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name
under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent
is not commonly known by the [<awvacations.com>] domain name.”); see
also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001)
(interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been
commonly known by the domain name prior to registration of the domain name to
prevail"); 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.”).
Additionally,
Complainant asserts that Respondent is using the <hallelujahacres.com>
domain name to operate a website that displays links to third-party websites
related to health and nutrition, some of which are in direct competition with
Complainant. The Panel infers that
Respondent benefits from diverting Internet users to these third-party websites
by earning click-through fees for those users directed via Respondent’s website
at the disputed domain name. Respondent
cannot establish rights or legitimate interests under Policy ¶ 4(c)(i) or ¶
4(c)(ii) by using Complainant’s mark to attract Internet users to Respondent’s
commercial website. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's
demonstrated intent to divert Internet users seeking Complainant's website to a
website of Respondent and for Respondent's benefit is not a bona fide offering
of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also WeddingChannel.com
Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that
the respondent’s use of the disputed domain name to
redirect Internet users to websites unrelated to the complainant’s mark,
websites where the respondent presumably receives a referral fee for each
misdirected Internet user, was not a bona fide offering of goods or
services as contemplated by the Policy).
Accordingly, the
Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant
urges that Respondent is using the <hallelujahacres.com> domain
name for a website that links to products and services that compete with those
of Complainant. The Panel infers that
Respondent receives referral fees for forwarding Internet users interested in
Complainant’s products and services to competitors’ websites. Respondent’s use of Complainant’s HALLELUJAH
ACRES mark in the domain name creates a likelihood of confusion and suggests an
attempt to attract Internet users to Respondent’s commercial website. The Panel finds that this is sufficient
evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See CMG Worldwide, Inc. v.
Lombardi, FA 95966 (Nat. Arb. Forum Jan. 12, 2001) (finding that the
respondent’s use of the complainant’s VINCE LOMBARDI mark to divert Internet
users to its commercial website located at the <vincelombardi.com> domain
name constituted bad faith use and registration of the disputed domain name); see
also Drs. Foster & Smith, Inc. v.
Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where
the respondent directed Internet users seeking the complainant’s site to its
own website for commercial gain); see also G.D. Searle & Co. v.
Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that
the respondent registered and used the domain name in bad faith pursuant to
Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar
domain name to attract Internet users to its commercial website).
Furthermore,
Respondent had constructive notice of Complainant’s rights in the HALLELUJAH
ACRES mark due to Complainant’s registration of the mark with the USPTO. See Orange Glo Int’l v. Blume,
FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“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.”).
In addition, Respondent’s use of a domain name identical to
Complainant’s mark to operate a website that links to third parties in
competition with Complainant suggests that Respondent had actual knowledge of
Complainant’s rights in the mark. See
Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that
because the link between the complainant’s mark and the content advertised on
the respondent’s website was obvious, the respondent “must have known about the
Complainant’s mark when it registered the subject domain name”). Respondent’s registration of a domain name
incorporating Complainant’s mark with actual or constructive knowledge of
Complainant’s rights in the mark is evidence of bad faith registration and user
under Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA
94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith
includes actual or constructive knowledge of a commonly known mark at the time
of registration); see also Digi Int’l v. DDI Sys., FA 124506
(Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith,
when Respondent reasonably should have been aware of Complainant’s trademarks,
actually or constructively.”).
Consequently,
the Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <hallelujahacres.com> domain name be TRANSFERRED
from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: October 31, 2005.
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