LTD Commodities, LLC v. New
South Communications & Broadcasting
Claim Number: FA0612000869982
PARTIES
Complainant is LTD Commodities, LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abcdistributing.us>, registered with
Go Daddy
Software, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On
On December 21, 2006, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of January 10, 2007 by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute
Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum has discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any
rules and principles of law that the Panel deems applicable, without the
benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <abcdistributing.us> domain name is identical to Complainant’s ABC DISTRIBUTING mark.
2.
Respondent does not have any rights or
legitimate interests in the <abcdistributing.us>
domain name.
3.
Respondent registered and used the <abcdistributing.us> domain name in
bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, LTD Commodities, LLC, is the
legal owner of ABC Distributing LLC, having acquired the company in a
merger. In connection with the provision
of its marketing and catalog services, Complainant has registered a number of
trade and service marks with the United States Patent and Trademark Office
(“USPTO”) including the ABC DISTRIBUTING mark (Reg. No. 1,885,664 issued March
21, 1995).
Respondent registered the <abcdistributing.us> domain name
DISCUSSION
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 the Complainant's undisputed
representations pursuant to Paragraphs 5(f), 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 the 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 the
Respondent is identical or confusingly similar to a trademark or service mark
in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate
interests in respect of the domain name; and
(3) the domain name has been registered or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical and/or Confusingly Similar
Complainant maintains rights in the ABC
DISTRIBUTING mark through registration with the USPTO. The Panel finds that Complainant’s
registration and use of the ABC DISTRIBUTING mark is sufficient to establish
rights pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Respondent’s <abcdistributing.us> domain name contains Complainant’s entire ABC
DISTRIBUTING mark and adds the country code “.us.” The Panel finds that the addition of a
country code to an otherwise identical domain name fails to sufficiently
distinguish a domain name from a protected mark pursuant to Policy ¶ 4(a)(i). See Tropar Mfg.
Co. v. TSB, FA 127701 (Nat.
Arb. Forum
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant alleges that Respondent lacks
rights and legitimate interests in the <abcdistributing.us> domain
name. In instances where Complainant has
made a prima facie case under Policy ¶ 4(a)(iii), the burden shifts to
Respondent to set forth concrete evidence that it does possess rights or
legitimate interests in the disputed domain name. See Compagnie Generale des
Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Complainant has
established rights in the ABC DISTRIBUTING mark, and asserts without
contradiction that Respondent is not the owner of the ABC DISTRIBUTING
mark. The Panel finds that there is no
available evidence that Respondent owns or benefits from a trade or service
mark that is identical to the <abcdistributing.us>
domain name in accordance with Policy
¶ 4(c)(i). See Pepsico, Inc. v. Becky a/k/a Joe Cutroni, FA 117014 (Nat. Arb.
Forum Sept. 3, 2002) (holding that because Respondent did not own any
trademarks or service marks reflecting the <pepsicola.us> domain name, it
had no rights or legitimate interests pursuant to UDRP ¶4(c)(i)); see also Meow Media Inc. v. John Basil a/k/a
American Software Factory Corp., Inc., FA 113280 (Nat. Arb. Forum
Respondent is not
using the <abcdistributing.us> domain name in connection with a bona fide
offering of goods or services or a legitimate noncommercial or fair use as
required by Policy ¶¶ 4(c)(ii) and (iv).
Respondent is using the disputed domain name to redirect Internet users
to a portal website featuring links to a series of unrelated websites. Presumably, Respondent receives pay-per-click
referral fees from those links. The
Panel finds that such use is not within the scope contemplated by Policy ¶¶
4(c)(ii) and (iv) and, thus, is not indicative of Respondent’s rights or
legitimate interests in the disputed domain name. See 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 theUDRP); see also 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).”).
Complainant further alleges that Respondent is neither commonly known by the <abcdistributing.us> domain name nor authorized to register domain names featuring Complainant’s ABC DISTRIBUTING mark in any way. In the absence of evidence suggesting otherwise, the Panel finds that Respondent has not established rights or legitimate interests in accordance with Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent is using the <abcdistributing.us> domain name to redirect Internet users to a portal site
with a series of links to unrelated websites, from which Respondent presumably
receives commercial benefit. The Panel
finds Respondent’s use evinces bad faith pursuant to Policy ¶ 4(b)(iv). See Drs. Foster
& Smith, Inc. v. Lalli, FA 95284
(Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
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 <abcdistributing.us> domain name be TRANSFERRED
from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: January 28, 2007
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