Barratt American Inc. v. Cambridge Capital, Ltd.
Claim Number: FA0606000728815
Complainant is Barratt American Inc. (“Complainant”), represented by Peter K. Hahn, of Luce, Forward, Hamilton & Scripps, 600 West Broadway, Suite 2600, San Diego, CA 92101. Respondent is Cambridge Capital, Ltd. (“Respondent”), The Bahamas Financial Centre, Shirley & Charlotte Streets, Nassau, Island of New Provid, II 33126, Bahamas.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <barrat.com>, registered with Dstr Acquisition Vii, Llc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 7, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 9, 2006.
On June 8, 2006, Dstr Acquisition Vii, Llc confirmed by e-mail to the National Arbitration Forum that the <barrat.com> domain name is registered with Dstr Acquisition Vii, Llc and that Respondent is the current registrant of the name. Dstr Acquisition Vii, Llc has verified that Respondent is bound by the Dstr Acquisition Vii, Llc 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 June 12, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 3, 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@barrat.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 7, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <barrat.com> domain name is confusingly similar to Complainant’s BARRATT mark.
2. Respondent does not have any rights or legitimate interests in the <barrat.com> domain name.
3. Respondent registered and used the <barrat.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Barratt American Inc., is a leader in the building of residential homes and communities in Southern California. In association with these services, Complainant has been using the BARRATT name for over twenty-five years and has spent substantial money, time, and resources advertising and promoting the BARRATT name in television commercials, radio and print advertisements, product literature and other marketing materials.
Respondent registered the <barrat.com> domain name on January 10, 2000. Respondent’s disputed domain name resolves to a website featuring links to various unrelated 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 assets common law rights in the BARRATT mark. In support of this assertion, Complainant has set forth evidence of continuous and extensive use for over twenty-five years in television commercials, radio and print advertisements, product literature and other marketing materials. The Panel finds that Complainant has sufficiently established secondary meaning of the BARRATT mark and common law rights have been shown pursuant to Policy ¶ 4(a)(i). See Fishtech, Inc. v. Rossiter, FA 92976 (Nat. Arb. Forum Mar. 10, 2000) (finding that the complainant has common law rights in the mark FISHTECH that it has used since 1982); see also Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of [KEPPEL BANK] in connection with its banking business, it has acquired rights under the common law.”).
Complainant contends that Respondent’s <barrat.com> domain name is confusingly similar to Complainant’s mark. Respondent’s disputed domain name retains the dominant features of Complainant’s BARRATT mark and simply omits the letter “t.” The Panel finds that that Respondent’s <barrat.com> domain name is confusingly similar to Complainant’s BARRATT mark pursuant to 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); see also Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the 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 <barrat.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Respondent’s failure to respond to the Complaint presents a rebuttable presumption that Respondent lacks 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). However, the Panel chooses to consider whether the evidence supports rights or legitimate interests under Policy ¶ 4(c).
Complainant contends that Respondent is using the
confusingly similar <barrat.com> domain name to operate a website
that features links to various unrelated commercial websites from which
Respondent 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)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶
4(c)(iii). See 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).”); 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).
Moreover, Complainant contends that Respondent is neither commonly known by the disputed domain name nor licensed to register a domain name that features Complainant’s BARRATT mark or any derivation thereof. As such, the Panel finds that in the absence of evidence to suggest otherwise, Respondent is not commonly known by the <barrat.com> 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 G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Finally, Complainant contends that Respondent’s use of the
disputed domain name is evidence of bad faith registration and use. The Panel finds that such use 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 Am. Univ.
v. Cook, FA 208629 (Nat. Arb. Forum Dec.
22, 2003) (“Registration and use of a domain name that incorporates another's
mark with the intent to deceive Internet users in regard to the source or
affiliation of the domain name is evidence of bad faith.”); 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);
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.’”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <barrat.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: July 21, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum