LTD Commodities, LLC v. AnnaValdieri
Claim Number: FA0611000842933
Complainant is LTD Commodities, LLC (“Complainant”), represented by Nora
Preece, of Alter and Weiss, 19 S. LaSalle, Suite
1650, Chicago, IL 60603.
Respondent is AnnaValdieri (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <abcdistributing.org>, registered with Bizcn.com, 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
On
On November 22, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 12, 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@abcdistributing.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <abcdistributing.org> domain name is identical to Complainant’s ABC DISTRIBUTING mark.
2. Respondent does not have any rights or legitimate interests in the <abcdistributing.org> domain name.
3. Respondent registered and used the <abcdistributing.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LTD Commodities, LLC, is the legal owner of ABC
Distributing, LLC, and the assignee of the trademark registrations for the ABC
DISTRIBUTING mark, which Complainant, through its predecessors in interest, has
continuously used since at least 1997 in connection with a mail-order catalog
and website. Complainant holds several
trademark registrations for the ABC DISTRIBUTING mark with the United States
Patent and Trademark Office (“USPTO”) including Reg. No. 2,887,254 issued
Respondent’s <abcdistributing.org> domain name,
which it registered on
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 sufficiently demonstrated its rights in the
ABC DISTRIBUTING mark by holding several trademark registrations for the mark
with the USPTO, and showing use dating back to at least 1997.
The <abcdistributing.org> domain name fully
incorporates Complainant’s ABC DISTRIBUTING mark and simply eliminates the
space between terms and adds the generic top-level domain (“gTLD”) “.com.” In W. Union Holdings, Inc. v. Topiwala,
D2005-0945 (WIPO Oct. 20, 2005), the panel found the <wuib.com> domain
name to be identical to the complainant’s mark because the generic top-level
domain (gTLD) “.com” after the name WUIB is part of the Internet address and
does not add source-identifying significance.
Similarly, the panel in Reebok Int’l Ltd. v. Ohno,
FA 511463 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and
legitimate interests in the <abcdistributing.org>
domain name. Complainant must first make
a prima facie case in support of its allegations, and then the burden
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
Respondent’s failure to answer the Complaint raises a presumption
that Respondent has no rights or legitimate interests in the <abcdistributing.org> domain
name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (finding that the respondents’ failure to respond can be
construed as an admission that they have no legitimate interest in the domain
names); 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 “AnnaValdieri,” and there is no other evidence
in the record suggesting that Respondent is commonly known by the <abcdistributing.org> domain
name. Thus, Respondent has not
established rights or legitimate interests in the <abcdistributing.org> domain name pursuant to Policy ¶
4(c)(ii). See Gallup, Inc. v.
Amish Country Store, FA 96209 (Nat. Arb. Forum
Furthermore, Respondent’s <abcdistributing.org>
domain name, which is identical to Complainant’s ABC DISTRIBUTING mark,
resolves to a website featuring links to websites with content unrelated to
Complainant. In Black
& Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb.
Forum June 24, 2002), the respondent was using the <blackandecker.com>
domain name, which the panel held was confusingly similar to the complainant’s
BLACK & DECKER mark, to redirect Internet users to third-party commercial
websites. The panel concluded that the
respondent presumably received click-through fees for each consumer it diverted
to other websites, and that such diversion for commercial gain did not
constitute a bona fide offering of goods and services pursuant to Policy
¶ 4(c)(i) or a legitimate noncommercial fair use
pursuant to Policy ¶ 4(c)(iii).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <abcdistributing.org>
domain name, which is identical to Complainant’s ABC DISTRIBUTING mark, to
redirect Internet users seeking Complainant’s products to a web directory
displaying links to content unrelated to Complainant. The Panel infers that Respondent is
collecting pay-per-click fees for each consumer it diverts to other
websites. Accordingly, the Panel finds
that Respondent’s conduct demonstrates bad faith registration and use pursuant
to Policy ¶ 4(b)(iv).
See T-Mobile USA, Inc. v. utahhealth, FA 697821
(Nat. Arb. Forum June 7, 2006) (holding that the registration and use of
a domain name confusingly similar to a complainant’s mark to direct Internet
traffic to a commercial “links page” in order to profit from click-through fees
or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Bank of Am. Corp. v. Out Island Props.,
Inc., FA 154531 (Nat. Arb. Forum June 3, 2003) (stating that “[s]ince the
disputed domain names contain entire versions of Complainant’s marks and are
used for something completely unrelated to their descriptive quality, a
consumer searching for Complainant would become confused as to Complainant’s
affiliation with the resulting search engine website” in holding that the
domain names were registered and used in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <abcdistributing.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 2, 2007
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