Nortel Networks Limited v. BuyMeBuyMe.com Inc.
Claim Number: FA0604000671847
Complainant is Nortel Networks Limited (“Complainant”), represented by Lisa P London, of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., 901 New York Avenue NW, Washington, DC 20001. Respondent is BuyMeBuyMe.com, Inc. (“Respondent”), 1243 52nd Street, Suite 2, West Palm Beach, FL 33407.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <nortelphones.com> and <norstarphones.com>, registered with Enom, 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.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 5, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 6, 2006.
On April 6, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <nortelphones.com> and <norstarphones.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names. Enom, Inc. has verified that Respondent is bound by the Enom, 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 April 6, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 26, 2006 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@nortelphones.com and postmaster@norstarphones.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 2, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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:
A. Nortel and its Goods and Services
1.
Nortel is a
global leader in telephony, data, wireless and wireline solutions for the
Internet. Nortel has offices and facilities
in Canada, Europe, Asia‑Pacific, Caribbean and Latin America, the Middle
East, Africa, and the United States, and serves customers in 150
countries.
2.
Nortel
offers an enormous array of goods and services in the telecommunications field,
which can be divided into the following categories: telephone and accessories; access; business applications and
services; components, data and Internet; directory and operator services;
intelligent networks; Internet telephony; managed application services; optical
networks, professional services; routers; serviceware; small office and
residential; switching; video and cable; and wireless and mobility.
3.
Nortel owns
the trademark and trade name NORTEL, which it first began using as its name and
to identify its goods and services in the mid-to-late 1980s. Nortel filed its first trademark application
for the NORTEL mark in Canada in 1975, and in 1991, began its formal worldwide
trademark registration program for the NORTEL mark.
4.
Nortel owns
the mark NORSTAR, which it has used since at least as early as 1987 to identify
its telephone products.
5.
Nortel
devotes significant resources each year to advertise and promote its corporate name and
its NORTEL and NORSTAR-branded
products and services.
6.
Nortel also
extensively advertises and promotes its products and services under the NORTEL and NORSTAR marks on
the Internet at Nortel’s
website, accessible via the domain names NORTEL.COM and NORTELNETWORKS.COM. Nortel has
used its website as a worldwide information and distribution channel for its
business for many years.
7.
By virtue
of the arbitrary nature, and hence the inherent strength, of the NORTEL and
NORSTAR marks as applied to Nortel’s products and services, Nortel’s extensive
sales, and Nortel’s substantial use and promotion of its NORTEL and NORSTAR
marks, those marks have become famous.
B. Nortel’s
Trademark Holdings
8.
Nortel owns
numerous registrations and applications for its NORTEL mark, including the
following representative examples:
a. U.S. Registration No. 2,001,714 for the mark NORTEL in block letters, first used June 26, 1995, filed December 27, 1991, issued September 17, 1996, covering goods and services in International Classes 9 (telephone and telecommunications equipment and electrical equipment) and 37 (telecommunications services).
b. U.S. Registration No. 2,184,321 for the mark NORTEL & Design, first used November 15, 1995, first used November 15, 1995, filed November 16, 1994, issued August 25, 1998, covering goods in International Class 9 (telecommunications equipment and electrical equipment).
c. U.S. Registration No. 1,980,303 for the mark NORTEL in block letters, first used December 13, 1994, filed December 27, 1991, issued June 11, 1996, covering goods in International Class 9 (telecommunications equipment and electrical equipment).
9.
Nortel owns
many registrations and applications for its NORSTAR mark including, for
example, U.S. Registration No. 1,509,113, first used December 18, 1987, filed
March 25,1988, issued October 18, 1988, covering goods in International Class 9
(telephone sets and service units).
10.
Nortel’s
assignment of a security interest in its U.S. trademark registrations to JP
Chase Bank N.A. does not affect Nortel’s standing to bring this UDRP
Complaint. Nortel owns its NORTEL and
NORSTAR marks, and enforces its trademarks and trademark registrations.
11.
Nortel’s
registrations for the NORTEL and NORSTAR marks on the Principal Register
constitute prima facie evidence of the validity of those marks and Nortel’s
exclusive rights to use those marks throughout the United States. (15 U.S.C. § 1057(b)). Nortel’s registrations also constitute
constructive notice of Nortel’s claim of ownership in the NORTEL and NORSTAR
marks, as to eliminate any defense of good faith adoption and use made as of
the date of registration. (15 U.S.C.
§ 1772).
12.
Registration
of a trademark on the Principal Register statutorily provides nationwide rights
as of the filing date of the application.
15 U.S.C. §1057(c).
13.
Nortel’s trademark rights in its NORTEL and
NORSTAR marks, based on its U.S. registrations and on its common law rights
acquired through the extensive use of its NORTEL and NORSTAR marks, long
predate Respondent’s registration of the Domain Names.
C. Respondent’s
Infringing Activities and Bad Faith Acts
14.
Respondent
registered the Domain Names on January 13, 2004, many years after: (a)
Complainant began using its NORTEL and NORSTAR marks, (b) the NORTEL and
NORSTAR marks became famous, and (c) the effective date of Complainant’s
trademark registrations.
15.
Respondent
uses the domain name NORTELPHONES.COM to redirect Internet users to its
commercial website selling telephones and related products manufactured by
Complainant’s competitors as well as telecommunications products apparently
manufactured by Complainant.
16.
Respondent
uses the domain name NORSTARPHONES.COM for a commercial pay-per-click website
advertising numerous links to categories, including categories relating to
Complainant’s NORSTAR mark (e.g., “Norstar Phone,” “Nortel Norstar,” and
“Office Phone System”) that lead to links for Complainant’s products offered by
third parties as well as directly competing products. When Respondent’s website is viewed on a computer screen, the
Domain Name appears in the address line of the browser, but the domain name
listed on the website printout is Information.com―the originating URL for
Respondent’s website. Respondent
undoubtedly receives “click-through” fees or commissions for its website from
Information.com, an online advertising company that provides website owners
with “a way to monetize web, search and e-mail traffic.”
17.
On July 13,
2005, September 21, 2005, and December 1, 2005, Complainant sent Respondent
cease-and-desist letters regarding its infringing activities. To date, Respondent has not responded to
Complainant’s demands.
18.
Respondent
has registered at least two domain names comprised of famous trademarks owned
by third parties, namely, the domain names MICROSOFTWINDOWS.NET and
SONYPLAYSTATION.NET, which incorporate the marks MICROSOFT, SONY, and
PLAYSTATION.
THE DOMAIN NAMES ARE
CONFUSINGLY SIMILAR
TO COMPLAINANT’S MARKS
19.
The domain
names NORTELPHONES.COM and NORSTARPHONES.COM are confusingly similar to
Complainant’s NORTEL or NORSTAR mark because each is comprised of Complainant’s
mark and the generic term “phones.”
Combining Complainant’s NORTEL or NORSTAR mark with a generic term is
not sufficient to distinguish the Domain Names from Complainant’s mark,
especially when the Domain Names clearly relate to Complainant’s business. UDRP Panels have routinely held that the
addition of descriptive and/or generic terms to a mark in a domain name does
not distinguish the domain name from that mark. See, e.g., Caterpillar
Inc. v. Roam the Planet, Ltd. (WIPO D2000-0275) (finding the domain name
catmachines.com confusingly similar to complainant’s mark CAT and noting the
addition of the word “machines” “reinforce[s] the association of the
[c]omplainant’s trademark with its primary line of products.”); XO
Communications Inc. v. Registrant info@fashionid.com 9876543210 (NAF
FA0212000137676) (finding the domain name xocommunications.com confusingly
similar to the complainant’s registered mark XO and holding the addition of a
term that describes the complainant’s business does not distinguish the domain
name from the complainant’s mark); The PNC Financial Services Group, Inc. v.
Unasi Inc. (NAF FA0508000535925) (finding the domain names pnccredit.com,
pncfinancialcorp.com, pncbankinternetbanking.com, and pncbankonlinebanking.com
domain names confusingly similar to complainant’s PNC, PNCBANK or PNCBANK.COM
mark because “Simply adding a common or descriptive term to [c]omplainant’s
registered marks is insufficient to distinguish the domain names from the
marks, especially since many of the terms have some association to [c]omplainant’s
business. Thus, the domain names are
confusingly similar to [c]omplainant’s marks under Policy ¶4(a)(i).”).
INTEREST
IN THE DOMAIN NAMES
20.
Respondent clearly has no rights or legitimate interest in the
Domain Names for the following reasons.
21.
First, Respondent has no intellectual property rights in
Complainant’s NORTEL and
NORSTAR marks.
22.
Second, Respondent is
not and has not been commonly known by the Domain Names.
23.
Third, Respondent’s registration and use of the Domain Names for
commercial websites advertising competing products do not constitute a bona fide offering
of goods or services under the UDRP.
Nor do Respondent’s activities constitute a legitimate noncommercial or
fair use of the Domain Names under the UDRP.
See, e.g.,
DaimlerChrysler Corporation v. LaPorte Holdings, Inc. (NAF
FA0411000363051) (“[R]espondent’s use of a domain name that is confusingly
similar to [c]omplainant’s registered mark to redirect Internet users
interested in [c]omplainant’s products and services to a website containing
links to websites that offer similar products and services is not in connection
with a bona fide offering of goods or services pursuant to Policy
¶4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to
Policy ¶4(c)(iii).”); Yahoo! Inc. v. Dkal (NAF FA0402000238650) (holding respondent’s use of the domain name to
offer competing goods and services does not constitute a bona fide offering of
goods or services or a legitimate noncommercial or fair use); H-D
Michigan, Inc. v. TT&R (NAF FA0209000126650) (holding
respondent’s use of the disputed domain names comprised of complainant’s HARLEY
mark to direct Internet users to respondent’s website selling motorcycles does not constitute a bona fide offering
of goods or services or a legitimate noncommercial or fair use under the UDRP);
see also Nortel Networks Limited v. Dimitar
Dimitrov d/b/a ICDSoft.com (NAF FA0411000360565) (holding
respondent’s use of the domain names nortelusa.com and nortelusa.net “to divert
Internet users to a website that sells Complainant’s products is not a use in
connection with a bona fide offering of goods or services pursuant to Policy
¶4(c)(i) or a legitimate noncommercial or fair use of the domain names pursuant
to Policy ¶4(c)(iii).").
RESPONDENT’S BAD FAITH UNDER SECTION 4(B)
OF THE UDRP
24.
Respondent’s
registration and use of the Domain Names meet the bad faith element set forth
in Section 4(b)(iv) of the UDRP.
Specifically, Respondent uses the Domain Names to intentionally attract,
for commercial gain, Internet users by creating a likelihood of confusion with
Complainant’s famous NORTEL and NORSTAR marks as to the source, sponsorship,
affiliation, and/or endorsement of Respondent’s websites
and the competing products advertised on Respondent’s websites. See, e.g., Vancouver City
Savings Credit Union v. LaPorte Holdings c/o Admin (NAF FA0512000608227)
(holding respondent’s use of the domain name for a website featuring links to
various commercial websites for respondent’s own commercial gain constitutes
bad faith pursuant to Section 4(b)(iv) of the UDRP); Cendant Corporation v.
LaPorte Holdings, Inc. (NAF FA0410000348124) (holding respondent’s use of
the disputed domain name for a commercial web directory website linking users
to competing services constituted bad faith pursuant to Section 4(b)(iv) of the
UDRP); see also Nortel Networks Limited v. Dimitar
Dimitrov d/b/a ICDSoft.com (NAF FA0411000360565) (holding
respondent's use of the disputed domain names nortelusa.com and nortelusa.net
for a website selling Complainant's products constitutes bad faith pursuant to
Section 4(b)(iv) of the UDRP).
25.
Respondent’s
registration and use of the Domain Names meet the bad faith element set forth
in Section 4(b)(iii) of the UDRP because Respondent disrupts Complainant’s
business by diverting Internet traffic from Complainant to Respondent’s
commercial websites that advertise competing products. See, e.g., Google Inc. v.
wwwgoogle.com and Jimmy Siavesh Behain (WIPO D2000-1240) (finding bad faith
in respondent’s use of the disputed domain name to direct Internet users to
respondent’s competing website); Fatbrain.com, Inc. v IQ Management
Corporation (NAF FA0101000096374) (same); see also SmithKline
Beecham Corporation v. Green Domains (NA FA0312000219165) (holding
respondent’s use of the disputed domain names for commercial benefit disrupted
complainant’s business in bad faith).
26.
Respondent’s registration of
the Domain Names meet the bad faith element set forth in Section 4(b)(ii) of
the UDRP because Respondent has a pattern of registering trademark-related
domain names in bad faith. Respondent
registered the two Domain Names that are subject to this Complaint, as well as
the domain names MICROSOFTWINDOWS.NET and SONYPLAYSTATION.NET as shown
above. See, e.g., Yahoo!
Inc. v. Syrynx, Inc. and Hugh Hamilton (WIPO D2000-1675) (finding bad faith
in respondent’s registration of two domain names incorporating complainant’s
mark); General Electric
Company v. Normina Anstalt a/k/a Igor Fyodorov (WIPO D2000-0452) (finding bad faith in
the respondent’s registration of three trademark-related domain names).
Respondent acted in bad faith by registering the Domain Names because (1) as a seller of telecommunications-related products, it had actual knowledge of Complainant’s rights in its NORTEL and NORSTAR marks which identifies Complainant’s telecommunications products and services, and (2) it was on notice of Complainant’s rights in its NORTEL and NORSTAR marks by virtue of Complainant’s federal trademark registrations for those marks. Registration of a domain name with knowledge of the trademark owner’s rights has been consistently found to constitute bad faith under the UDRP. See, e.g., SmithKline Beecham Corporation and SmithKline Beecham plc v. Eric Kaiser (NAF FA0305000157290) (holding respondent’s registration of the disputed domain name was in bad faith because “The registration and use of a domain name confusingly similar to a registered trademark despite notice of the mark holder’s rights is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii).”); IndyMac Bank F.S.B. v. Domain Owner a/k/a Lee Wigod (NAF FA0303000150814) (finding the respondent registered the domain names in bad faith because it was on notice of the complainant’s rights); see also Reed Elsevier Properties Inc. v. David Allen (NAF FA0102000096667) (finding bad faith when respondent registered the disputed domain names with knowledge of complainant’s rights in its mark and used the domain name to offer related services).
B. Respondent failed to submit a Response in this proceeding.
Complainant, Nortel Networks Limited, is a global leader in telephone, data, wireless, and wireline solutions for the Internet. Complainant provides a variety of goods and services in 150 countries including telephones and accessories, directory and operator services, optical networks, and wireless and mobility services. Complainant has registered numerous marks worldwide, particularly the NORTEL and NORSTAR marks (Reg. No. 2,001,714 issued September 17, 1996 and Reg. No. 1,509,113 issued October 18, 1988, respectively) with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the <nortelphones.com> and <norstarphones.com> domain names on January 13, 2004. Both domain names resolve to a website that features links to various competing and non-competing commercial websites.
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 has established rights in the NORTEL and NORSTAR marks 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 Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning”).
Complainant still has the rights to use and enforce its marks even though they have been assigned as collateral to JP Chase Bank N.A. for one or more obligations (such asset based secured lending is a common occurrence in today’s economy). The secured party is neither a necessary nor desirable party to this proceeding because no default, repossession or surrender of the collateral has been alleged. JP Chase Bank N.A.’s rights are not being adversely affected by this decision. To hold otherwise would impose an unnecessary burden on the commercial financing industry and increase transaction costs without gaining any significant benefit.
Complainant contends Respondent’s <nortelphones.com> and <norstarphones.com> domain names are confusingly similar to Complainant’s marks. Respondent’s <nortelphones.com> domain name features Complainant’s entire NORTEL mark and adds the generic term “phones,” a term with a direct connection to the business in which Complainant engages. Similarly, Respondent’s <norstarphones.com> domain name contains Complainant’s entire NORSTAR mark and also adds the generic term “phones.” The Panel finds the addition of generic terms, particularly those with a direct connection to Complainant’s business, fails to sufficiently distinguish Respondent’s domain names from Complainant’s marks pursuant to Policy ¶4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant has alleged Respondent does not have rights or
legitimate interests in the <nortelphones.com> and <norstarphones.com>
domain names. 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 Respondent does not have rights or legitimate interests in the disputed
domain names. 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.
Complainant contends Respondent is using the confusingly similar <nortelphones.com> and <norstarphones.com> domain names to operate websites that feature links to various competing and non-competing commercial websites from which Respondent presumably receives referral fees. The Panel finds such use of Complainant’s marks for Respondent’s own commercial gain is neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); 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).
Complainant contends Respondent is neither commonly known by the disputed domain names nor licensed to register domain names featuring Complainant’s marks. In the absence of evidence suggesting otherwise, the Panel finds Respondent is not commonly known by the disputed domain names under Policy ¶4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); see also 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 Policy ¶4(a)(ii) satisfied.
Complainant contends Respondent’s use of the <nortelphones.com>
and <norstarphones.com> domain names for the purpose of
operating a website that features links to various competing and non-competing
commercial websites, which presumably generate referral fees for Respondent, is
evidence of bad faith. The Panel finds
such use of Complainant’s marks will likely cause confusion as to Complainant’s
sponsorship of, and affiliation with, Respondent’s websites. 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 Policy ¶4(b)(iv) where the respondent was using the
confusingly similar domain name to attract Internet users to its commercial
website); see also Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to Policy ¶4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”).
Respondent’s choice of business name (BuyMeBuyMe.com, Inc.) suggests it purchased these domain names primarily for the purpose of reselling them. Respondent’s email address of Sales@BuyMeBuyMe.com further bolsters this suggestion. Coupled with the fact Respondent has purchased domain names containing other trademarks before, this Panel infers Respondent registered and uses these domain names in bad faith. Such “winks and nods” cannot be used to avoid the obvious – Respondent is trying to resell these domain names. Putting the offer to sell into Respondent’s name does not blind the Panel to what Respondent is trying to do. A panel is not required to disregard its common sense when deciding a case.
The Panel finds Policy ¶4(a)(iii) 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 <nortelphones.com> and <norstarphones.com> domain names be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: May 16, 2006
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