Linak A/S
v. Linak Family
Claim Number: FA0603000667413
PARTIES
Complainant is Linak A/S,
Nordborg (“Complainant”) represented by Michelle
R. Osinski, of Dykema Gossett, PLLC. Respondent is Linak Family
(“Respondent”), Newhaven, Madison, WI 53717.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <linak.us>,
registered with Go Daddy Software, Inc.
PANEL
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.
Judge Ralph Yachnin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on March 24, 2006; the Forum received a hard copy
of the Complaint on March 27, 2006.
On March 25, 2006, Go Daddy Software, Inc. confirmed by e-mail to the
Forum that the <linak.us> 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 the U.
S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 31, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of April 20, 2006 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules
for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On April 25, 2006, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Judge Ralph
Yachnin 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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <linak.us> domain name is identical to Complainant’s LINAK mark.
2.
Respondent does not have any rights or legitimate
interests in the <linak.us> domain name.
3.
Respondent registered and used the <linak.us>
domain name in bad faith.
B. Respondent failed to submit
a Response in this proceeding.
FINDINGS
Complainant,
Linak A/S, is a worldwide leader in designing and manufacturing electric linear
actuator systems. Complainant owns
numerous marks worldwide including the LINAK mark registered with the United
States Patent and Trademark Office (“USPTO”) (Reg. No. 1,545,237 issued May 6,
1989).
Respondent registered the <linak.us> domain name on March 30, 2003. Respondent’s domain name resolves to a website featuring adult-oriented material and links to various adult-oriented websites.
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 the 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 (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 the 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 the Respondent is identical or
confusingly similar to a trademark or service mark in which the Complainant has
rights; and
(2) the Respondent has no rights or legitimate interests in respect of
the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Complainant has established rights in the LINAK mark through registration
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.”).
Complainant contends that Respondent’s <linak.us> domain name is identical to Complainant’s mark. Respondent’s domain name features Complainant’s entire LINAK mark and adds the country code top-level domain (“ccTLD”) “.us.” The Panel finds that the addition of a ccTLD is irrelevant when determining whether a domain name is identical pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark).
The Panel finds that
Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that
Respondent does not have rights or legitimate interests in the <linak.us> domain name. Once Complainant makes a prima facie
case in support of its allegations, the burden shifts to Respondent to show
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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1,
2002) (holding that, where the complainant has asserted that respondent does
not have rights or legitimate interests with respect to the domain name, it is
incumbent on respondent to come forward with concrete evidence rebutting this
assertion because this information is “uniquely within the knowledge and
control of the respondent”); 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 a right or legitimate interest does exist); see also Broadcom Corp. v.
Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s
failure to respond to the Complaint functions as an implicit admission that
[Respondent] lacks rights and legitimate interests in the disputed domain
name. It also allows the Panel to accept
all reasonable allegations set forth…as true.”). However, the Panel chooses to analyze whether the evidence
supports rights or legitimate interests.
Respondent has not established that it is the owner or beneficiary of a trade or service mark that is identical to the <linak.us> domain name. Consequently, the Panel finds that Respondent has not demonstrated rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(i). Moreover, Complainant contends that Respondent is neither commonly known by the disputed domain name nor licensed to register names featuring Complainant’s mark. The Panel finds that although Respondent has listed itself to be the Linak Family, no affirmative evidence has been set forth showing as much. The Panel finds that in the absence of evidence showing otherwise, Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”); see also Starwood Hotels & Resorts Worldwide, Inc. v. SRW Hotels Worldwide, FA 214416 (Nat. Arb. Forum Jan. 12, 2004) (“Though Respondent’s WHOIS information lists Respondent as ‘SRW Hotels Worldwide,’ part of which constitutes the disputed domain name, there is no evidence before the Panel that Respondent was actually commonly known by that name.”).
Furthermore, Complainant contends that
Respondent is using the <linak.us> domain name to operate a
website that features adult-oriented material and links to various
adult-oriented websites from which Complainant presumably receives referral
fees. The Panel finds that such use for
Respondent’s own commercial gain is neither a bona fide offering of goods
or services pursuant to Policy ¶ 4(c)(ii) nor a legitimate noncommercial or
fair use pursuant to Policy ¶ 4(c)(iv).
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); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644
(Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly
similar to Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been
satisfied.
Finally, Complainant contends that
Respondent’s use of the <linak.us> domain name for purposes of operating
a website that features links to various adult-oriented commercial websites
from which Respondent presumably receives referral fees is evidence of bad faith. The Panel finds that such use of
Complainant’s mark is likely to cause confusion as to Complainant’s sponsorship
of and affiliation with Respondent’s website.
As a result, Respondent’s intent to deceive Internet users for
commercial gain 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 UDRP ¶ 4(b)(iv) where the respondent was using the confusingly
similar domain name to attract Internet users to its commercial website); see
also Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum
Mar. 18, 2003) (finding that the respondent’s
tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence
that the domain names were being used in bad faith).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the usDRP, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <linak.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: May 9, 2004
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