TM Century, Inc. v. Namegiant.com - This Domain May Be For Sale c/o Mark Segal
Claim Number: FA0610000829031
Complainant is TM Century, Inc. (“Complainant”), represented by Karl S. Kronenberger, of Kronenberger Burgoyne, LLP, 220 Montgomery Street, Suite 1920, San Francisco, CA 94104. Respondent is Namegiant.com - This Domain May Be For Sale c/o Mark Segal (“Respondent”), Mulberry House, 583 Fulham Road SQ6 5UA, GB.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <audioarchitecture.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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on October 30, 2006.
On October 30, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <audioarchitecture.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. 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 November 2, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 22, 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@audioarchitecture.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <audioarchitecture.com> domain name is identical to Complainant’s AUDIO ARCHITECTURE mark.
2. Respondent does not have any rights or legitimate interests in the <audioarchitecture.com> domain name.
3. Respondent registered and used the <audioarchitecture.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, TM Century, Inc., is a leading creator and provider of broadcast industry goods and services. Complainant holds a registration with the United States Patent and Trademark Office (“USPTO”) for the AUDIO ARCHITECTURE mark (Reg. No. 2,281,970 issued September 22, 1998). Complainant utilizes the AUDIO ARCHITECTURE mark in connection with its business.
Respondent registered the <audioarchitecture.com> domain name on September 5, 2003. Respondent is using the disputed domain name to operate a website featuring links to third-party websites. Many of the linked websites offer broadcast industry goods and services in direct competition with Complainant, for example “Audio,” “Pro Audio” and “New Media.” Other third-party links are unrelated to Complainant’s business. Additionally, Respondent has been a party to at least three previous UDRP decisions including WIPO case numbers D2005-1270, D2005-0220, and D2004-0642.
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’s registration of the AUDIO ARCHITECTURE mark with
the USPTO establishes Complainant’s rights in the mark. The Panel finds that Complainant has
established rights in the mark pursuant to Policy ¶ 4(a)(i). 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 Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that
registration of a mark is prima facie evidence
of validity, which creates a rebuttable presumption that the mark is inherently
distinctive.").
Respondent’s <audioarchitecture.com>
domain name is identical to Complainant’s AUDIO ARCHITECTURE mark. The disputed domain name includes
Complainant’s mark in its entirety with the sole addition of the generic
top-level domain “.com.” As top-level
domains are required for all domain names, the addition of “.com” to
Complainant’s mark does not distinguish the disputed domain name from
Complainant’s mark. 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 Entrepreneur
Media, Inc. v. Smith, 279 F.3d 1135,
1146 (9th Cir. 2002) (“Internet users
searching for a company’s Web site often assume, as a rule of thumb, that the
domain name of a particular company will be the company name or trademark
followed by ‘.com.’”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and
legitimate interests in the disputed domain name, thus, establishing a prima
facie case and shifting the burden to Respondent to demonstrate that it
does have rights or legitimate interests in the disputed domain name. Respondent had the opportunity to provide
the Panel with evidence and arguments in support of its rights or legitimate
interests, but failed to submit a Response in this dispute. The Panel views Respondent’s failure to
respond as evidence that Respondent lacks rights or legitimate interests. Nonetheless, the Panel will examine the
available evidence to determine whether Respondent has rights or legitimate
interests in the disputed domain name as outlined in Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission
constitutes a prima facie case under the Policy, the burden effectively
shifts to Respondent. Respondent’s failure to respond means that Respondent has
not presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name).
Respondent is using the <audioarchitecture.com> domain name to redirect Internet users to Respondent’s website featuring links to third-party websites. Many of the linked websites are commercial websites offering goods and services in direct competition with Complainant. Other linked websites are unrelated to Complainant’s business. Such use is not a bona fide offering of goods or service because Respondent’s website does not directly offer any genuine goods or services. Such use is also not a legitimate noncommercial or fair use because presumably Respondent is receiving pay-per-click referral fees from the links on its website. The Panel finds that Respondent is not using the disputed domain name in a manner contemplated by Policy ¶¶ 4(c)(i) or (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 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
There is no available evidence that Respondent is commonly
known by the <audioarchitecture.com> domain name. Respondent’s WHOIS information identifies
Respondent as “Namegiant.com- This Domain May Be For Sale,” a name unrelated to
the disputed domain name. The Panel finds
that Respondent is not commonly known by the disputed domain name as
contemplated by 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); see also 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.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has attempted to sell the <audioarchitecture.com>
domain name both directly to Complainant and to the general public. After being contacted by Complainant in
regard to the disputed domain name, Respondent offered the disputed domain name
to Complainant for $13,280. Additionally, Respondent offers the disputed domain name for sale
to the general public both on its website an in its WHOIS information. The Panel finds that Respondent’s attempts
to sell the disputed domain name is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(i). See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the
respondent’s offer to sell the domain name for $2,000 sufficient evidence of
bad faith registration and use under Policy ¶ 4(b)(i)); see also Bank of Am.
Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003)
(“Respondent's general offer of the disputed domain name registration for sale
establishes that the domain name was registered in bad faith under Policy ¶
4(b)(i).”).
This is not the first time that
Respondent has been involved in a UDRP dispute. In three previous cases Respondent has been found to have engaged
in bad faith registration and use of infringing domain names. See MC Enters v. Mark Segal
(Namegiant.com), D2005-1270 (WIPO Jan. 27, 2006); see also ORIX
Kabushiki Kaisha v. Namegiant, D2005-0220 (WIPO May 26, 2005); see also
Royal Bank of Canada v. Namegiant.com, D2004-0642 (WIPO Oct. 12, 2005). The Panel finds that Respondent’s behavior constitutes a pattern
of abusive registration and is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(ii). See
Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that
the respondent’s previous registration of domain names such as
<pillsbury.net>, <schlitz.net>, <biltmore.net> and
<honeywell.net> and subsequent registration of the disputed
<Marlboro.com> domain name evidenced bad faith registration and use
pursuant to Policy ¶ 4(b)(ii)); see also Australian Stock Exch. v. Cmty. Internet (Australia) Pty Ltd, D2000-1384 (WIPO Nov. 30, 2000) (finding bad
faith under Policy ¶ 4(b)(ii) where the respondent registered multiple
infringing domain names containing the trademarks or service marks of
other widely known Australian businesses).
Respondent’s <audioarchitecture.com> domain
name is identical to Complainant’s AUDIO ARCHITECTURE mark, making it likely
that Internet users seeking Complainant’s genuine website may instead find
themselves redirected to Respondent’s website.
Misdirected Internet users may mistakenly believe that Respondent’s
website is sponsored by or affiliated with Complainant. Respondent is capitalizing on this confusion,
presumably collecting pay per click referral fees from the links located on its
website. The Panel finds that such use
is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iv). See 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.’”); see also AltaVista Co. v. Krotov, D2000-1091
(WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the
respondent’s domain name resolved to a website that offered links to
third-party websites that offered services similar to the complainant’s
services and merely took advantage of Internet user mistakes).
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 <audioarchitecture.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 14, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum