Pearl Jam, A General Partnership v. Vertical Axis, Inc. c/o Domain Administrator
Claim Number: FA0511000593325
Complainant is Pearl Jam, A General Partnership (“Complainant”), represented by Leslie C. Ruiter, of Stokes Lawrence, P.S., 800 Fifth Ave., Suite 4000, Seattle, WA 98104-3179. Respondent is Vertical Axis, Inc. c/o Domain Administrator (“Respondent”), Yongin-suji Post Office, Pungdeokcheon2-dong, PO Box 49, Yongin si, Gyeonggi do, 449-846, KR.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pearljams.com>, registered with Domain Systems, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 8, 2005; the National Arbitration Forum received a hard copy of the Complaint on November 10, 2005.
On November 9, 2005, Domain Systems, Inc. confirmed by e-mail to the National Arbitration Forum that the <pearljams.com> domain name is registered with Domain Systems, Inc. and that Respondent is the current registrant of the name. Domain Systems, Inc. has verified that Respondent is bound by the Domain Systems, 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 November 15, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 5, 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@pearljams.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 12, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <pearljams.com> domain name is confusingly similar to Complainant’s PEARL JAM mark.
2. Respondent does not have any rights or legitimate interests in the <pearljams.com> domain name.
3. Respondent registered and used the <pearljams.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Pearl Jam, a General Partnership, has performed as the band “Pearl Jam” and sold musical recordings since 1991. Complainant provides, among other things, musical recordings, music entertainment services, concert tickets, quality clothing lines and merchandise on the internet and through registered resellers in connection with the PEARL JAM line of marks. Complainant first registered the PEARL JAM trademark with the U.S. Patent and Trademark Office (“USPTO”) on August 15, 1995 (Reg. No. 1,911,387). Complainant has subsequently registered other marks with the USPTO as well as various international trademark authorities.
Respondent registered the <pearljams.com> domain name on August 25, 2005. The website associated with the disputed domain name has referred Internet users to a variety of web sites, including referring to <drugrefills.com> and displaying links to “Sponsored Results for Eddie Vedder,” “Eddie Vedder at Amazon.com, Pearl Jam and Eddie Vedder-$9.99 and Eddie Vedder on Yahoo!Music,” and, later, to categorized links, including links to “Freshwater Pearl,” “Jam,” and “Eddie Vedder,” “chess,” “music,” “Fischer,” “ICC,” and “Blitz.”
Complainant implies that “Eddie Vedder” is the name of the lead singer of Pearl Jam.
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. 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).
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 has presented its registration of the PEARL JAM
mark to demonstrate its rights in the mark.
The Panel finds that Complainant has demonstrated rights in the PEARL
JAM mark as required by the Policy. 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 Panel finds that Respondent’s <pearljams.com>
domain name is confusingly similar to Complainant’s PEARL JAM mark. The only difference is the addition of the
letter “s,” which does not significantly distinguish the domain name from the
mark. National Geographic Soc’y v.
Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that
the domain name <nationalgeographics.com> was confusingly similar to the
complainant’s NATIONAL GEOGRAPHIC mark); Cream Pie Club v. Halford, FA
95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that “the addition of an ‘s’ to
the end of the complainant’s mark, ‘Cream Pie’ does not prevent the likelihood
of confusion caused by the use of the remaining identical mark. The domain name
<creampies.com> is similar in sound, appearance, and connotation”).
The Panel finds that Complainant has established Policy ¶ 4(a)(i).
Respondent is appropriating Complainant’s mark to lead
Internet users to links to Eddie Vedder, Complainant’s lead singer, as well as
links related to music and other unrelated links such as “chess,” “ICC,” and
“Blitz.” The Panel finds that
appropriating another’s mark to refer Internet users to related and unrelated
links is neither a bona fide offering of a good or service pursuant to
Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy
¶ 4(c)(iii). See 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); Seiko Kabushiki Kaisha v. CS into
Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who
are looking for products relating to the famous SEIKO mark, to a website
unrelated to the mark is not a bona fide offering of goods or services under
Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
There is nothing in the record, including the WHOIS
registration information, which demonstrates that Respondent is commonly known
by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); Gallup, Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not
have rights in a domain name when the respondent is not known by the mark).
The Panel finds that Complainant has established Policy ¶ 4(a)(ii).
The Panel finds that Respondent is appropriating
Complainant’s mark in a confusingly similar domain name to generate commercial
gain, which is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iv). See 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); 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).
The Panel finds that Complainant has established 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 <pearljams.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 27, 2005
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