Bellevue Ranch-Merced, L.P. v. Jucco Holdings
Claim Number: FA0604000684398
Complainant is Bellevue Ranch-Merced, L.P. (“Complainant”), represented by David J. Ingber, of Ellias & Elias, P.C., 5777 W. Maple Road Suite 120, West Bloomfield, MI 48322. Respondent is Jucco Holdings (“Respondent”), 655 Flower St. #337, Los Angeles, CA 90017.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <bellvueranch.com>, registered with Nameking.com, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 19, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 24, 2006.
On April 24, 2006, Nameking.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <bellvueranch.com> domain name is registered with Nameking.com, Inc. and that Respondent is the current registrant of the name. Nameking.com, Inc. has verified that Respondent is bound by the Nameking.com, 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 27, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 17, 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@bellvueranch.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 22, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 <bellvueranch.com> domain name is confusingly similar to Complainant’s BELLEVUE RANCH mark.
2. Respondent does not have any rights or legitimate interests in the <bellvueranch.com> domain name.
3. Respondent registered and used the <bellvueranch.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bellevue Ranch-Merced, L.P., is a joint venture between two housing developers, Hearthstone, Inc. and Crosswinds Communities, Inc., to build a master-planned community in Merced, California under the BELLEVUE RANCH mark. When complete, Complainant’s BELLEVUE RANCH community will feature over 5,000 homes, rental units, retail stores, offices, schools and public facilities. Complainant has been advertising and marketing its BELLEVUE RANCH community since the early 2000s, and the first phase of the project opened in early 2005. Complainant operates an informational website on the BELLEVUE RANCH development at the <bellevueranch.com> domain name.
Respondent registered the <bellvueranch.com> domain name on May 16, 2004. Respondent’s domain name resolves to a web page with pop-up advertisements and links to third-party websites unrelated to 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 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 is not required to own a trademark registration
in order to establish rights in the BELLEVUE RANCH mark under Policy ¶
4(a)(i). See British Broad. Corp. v.
Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy
“does not distinguish between registered and unregistered trademarks and
service marks in the context of abusive registration of domain names” and
applying the Policy to “unregistered trademarks and service marks”); see
also SeekAmerica Networks Inc. v.
Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not
require that the complainant's trademark or service mark be registered by a
government authority or agency for such rights to exist).
Because Complainant has been continuously marketing and advertising its master-planned community under the BELLEVUE RANCH mark since the early 2000s and has completed several phases of the project, the Panel holds that Complainant’s mark has acquired secondary meaning among the general public, especially with consumers in the state of California, where Respondent resides. Thus, Complainant has established common law rights in the mark pursuant to Policy ¶ 4(a)(i). See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also S.A. Bendheim Co., Inc. v. Hollander Glass, FA 142318 (Nat. Arb. Forum Mar. 13, 2003) (holding that the complainant established rights in the descriptive RESTORATION GLASS mark through proof of secondary meaning associated with the mark).
In addition, the Panel finds the <bellvueranch.com> domain name to be confusingly similar to Complainant’s BELLEVUE RANCH mark because Respondent’s domain name misspells the mark by differing from Complainant’s mark by only one letter. In Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002), the respondent registered the <compq.com> domain name, and the panel found it to be confusingly similar to the complainant’s COMPAQ mark because misspelling the mark was such a small change that it did not diminish the confusing similarity between the mark and the domain name. Likewise, Respondent’s domain name makes a small change to Complainant’s mark that results in a common misspelling of the BELLEVUE RANCH mark. The mere misspelling of Complainant’s mark renders the <bellvueranch.com> domain name confusingly similar to the BELLVUE RANCH mark under Policy ¶ 4(a)(i). See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <bellvueranch.com> domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the domain names. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) ( “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.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the
disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”); see also Geocities v. Geocities.com, D2000-0326
(WIPO June 19, 2000) (finding that the respondent has no rights or legitimate
interests in the domain name because the respondent never submitted a response
or provided the panel with evidence to suggest otherwise). However, the Panel
will now examine the record to determine if Respondent has rights or legitimate
interests under Policy ¶ 4(c).
Respondent has registered the domain name under the name “Jucco Holdings,” and there is no other evidence in the record suggesting that Respondent is commonly known by the <bellvueranch.com> domain name. Thus, Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the 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 Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”).
Moreover, Respondent’s disputed domain name, which is confusingly similar to Complainant’s BELLEVUE RANCH mark, resolves to a website containing links to various content unrelated to Complainant, including pop-up advertisements. Respondent likely receives click-through fees for diverting Internet users to these websites and thus is using Complainant’s marks for commercial gain. Therefore, Respondent is not using the <bellvueranch.com> domain name 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). See General Mills, Inc. v. Zuccarini, FA 97050 (Nat. Arb. Forum May 30, 2001) (“[U]nder the ‘Policy,’ Respondent may not utilize close derivations of famous and distinctive trademarks and, thus, profit from Internet users’ misspelling the Internet destinations they desire.”); see also Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv), because the <bellvueranch.com> domain name resolves to a website displaying links to content unrelated to Complainant and subjecting Internet users to pop-up advertisements. In ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000), the panel found bad faith where the respondent had registered the <espnclassic.com> domain name and used it to redirect Internet users to a website at the <iwin.com> domain name, because the respondent presumably received a portion of the
advertising revenue from the third-party website by redirecting Internet traffic there. Thus, the respondent was using the domain name to attract Internet users for commercial gain. Id. In this case, Respondent also likely receives referral fees for redirecting consumers seeking Complainant’s goods and services under the BELLEVUE RANCH mark to unrelated websites. Therefore, Respondent is taking advantage of the confusing similarity between Respondent’s domain name, the website content, and Complainant’s BELLEVUE RANCH mark, and profiting from the goodwill associated with the mark. See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
Furthermore, Respondent’s use of the <bellvueranch.com>
domain name, which is merely a typosquatted variation of Complainant’s BELLEVUE
RANCH mark, is evidence that Respondent registered and is using the disputed
domain name in bad faith pursuant to Policy ¶ (4)(a)(iii). Internet users seeking Complainant’s website
at the <bellevueranch.com> domain name who mistakenly misspell the mark
resolve to Respondent’s website at the <bellvueranch.com> domain
name, leading to consumer confusion over the source and affiliation of
Respondent’s site with Complainant’s BELLEVUE RANCH mark. Therefore, Respondent is taking advantage of
Internet users’ typographical errors for its own commercial gain. See Zone Labs,
Inc. v. Zuccarini, FA 190613 (Nat.
Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the
<zonelarm.com> domain name] that capitalizes on the typographical error
of an Internet user is considered typosquatting. Typosquatting, itself is
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see
also Dermalogica, Inc. v. Domains to Develop,
FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding
that the <dermatalogica.com> domain name was a “simple misspelling” of
the complainant's DERMALOGICA mark which indicated typosquatting
and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has been 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 <bellvueranch.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: June 2, 2006
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