Quartz Castle Inc. d/b/a GeneratorJoe v. FIG
Claim Number: FA0612000863294
Complainant is Quartz Castle Inc. d/b/a GeneratorJoe (“Complainant”), represented by Joseph
Romano, of Quartz Castle Inc. d/b/a GeneratorJoe,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <generatorjoe.com>, registered with Domainbuzz.ca.
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 December 13, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 2, 2007 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@generatorjoe.com 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 <generatorjoe.com> domain name is identical to Complainant’s GENERATORJOE mark.
2. Respondent does not have any rights or legitimate interests in the <generatorjoe.com> domain name.
3. Respondent registered and used the <generatorjoe.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Quartz Castle Inc., has been using the
GENERATORJOE mark in connection with the sale of electric generators and
related components and parts since June 2001.
Complainant holds a service mark registration with the United States
Patent and Trademark Office (“USPTO”) for the GENERATORJOE mark (Reg. No.
2,850,778 issued
Respondent, a company based in
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 its GENERATORJOE mark is
sufficient to establish Complainant’s rights in the mark pursuant to Policy ¶
4(a)(i). See Am. Online, Inc. v. Thomas P. Culver
Enters., D2001-0564 (WIPO
Respondent’s <generatorjoe.com> domain name uses Complainant’s GENERATORJOE mark in its entirety and adds the generic top-level domain “.com” to the mark. Therefore, Respondent’s domain name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i) because the addition of a top-level domain is irrelevant. See Daedong-USA, Inc. v. O’Bryan Implement Sales, FA 210302 (Nat. Arb. Forum Dec. 29, 2003) (“Respondent's domain name, <kioti.com>, is identical to Complainant's KIOTI mark because adding a top-level domain name is irrelevant for purposes of Policy ¶ 4(a)(i).”); see also 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).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant has alleged that Respondent does not have rights and legitimate interests in the <generatorjoe.com> domain name. 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). Because of Respondent’s failure to respond to the Complaint, the panel assumes that Respondent does not have 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 will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <generatorjoe.com>
domain name. Furthermore, WHOIS
information identifies Respondent as “FIG
Respondent is not making any use of the <generatorjoe.com> domain name, and
has shown no evidence of making preparations to use the domain name in the
future. Such use of the domain name
constitutes neither a bona fide
offering of goods or services under Policy ¶ 4(c)(i),
nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See
Melbourne IT Ltd. v. Stafford,
D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in
the domain name where there is no proof that the respondent made preparations
to use the domain name or one like it in connection with a bona fide
offering of goods and services before notice of the domain name dispute, the
domain name did not resolve to a website, and the respondent is not commonly
known by the domain name); see also State Fair of Tex. v. State Fair Guides,
FA 95066 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has alleged that Respondent registered the <generatorjoe.com> domain name with the intention of selling it, and has demanded monetary compensation, presumably in excess of Respondent’s out-of-pocket costs, from Complainant in exchange for rights to the disputed domain name. Respondent’s attempt to monetarily profit from the value in the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(b)(i). See 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).”); see also Grundfos A/S v. Lokale, D2000-1347 (WIPO Nov. 27, 2000) (finding that a failure to use the domain name in any context other than to offer it for sale to the complainant amounts to a use of the domain name in bad faith).
Respondent has not made any active use of the <generatorjoe.com> domain name. Such inactivity constitutes bad faith
pursuant to Policy ¶ 4(b)(iii). See DCI
S.A. v. Link Commercial Corp., D2000-1232 (WIPO
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 <generatorjoe.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 22, 2007
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