Quantum Optics, Inc. v. Kevin
Daste
Claim Number: FA0612000874498
Complainant is Quantum Optics, Inc. (“Complainant”), represented by Steven
J. Wadyka, of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <anarchyeyewear.com>, registered with Moniker Online Services, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 21, 2006; the National Arbitration Forum received a hard copy of the Complaint on December 22, 2006.
On December 22, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <anarchyeyewear.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 January 8, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 29, 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@anarchyeyewear.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 2, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <anarchyeyewear.com> domain name is identical to Complainant’s ANARCHY EYEWEAR mark.
2. Respondent does not have any rights or legitimate interests in the <anarchyeyewear.com> domain name.
3. Respondent registered and used the <anarchyeyewear.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Quantum Optics, Inc., is a manufacturer of
quality eyewear products, including sunglasses and eyeglasses. Complainant has extensively used the ANARCHY
EYEWEAR mark, and variations thereof, in connection with eyewear throughout the
Respondent, Kevin Daste, registered the <anarchyeyewear.com> domain name on July 23, 2006. Respondent is using the disputed domain name to display hyperlinks that advertise Complainant’s and its competitors’ products, as well as various unrelated products and services.
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 registrations of the ANARCHY EYEWEAR mark with the USPTO predate Respondent’s registration of the disputed domain name. Under the Policy, registration of a mark with an appropriate governmental authority confers rights in that mark to Complainant. Thus, the Panel finds that Complainant established rights in the ANARCHY EYEWEAR mark pursuant to Policy ¶ 4(a)(i). See Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 200) (finding that successful trademark registration with the USPTO creates a presumption of rights in a mark); see also Innomed Tech., 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.”).
Respondent’s <anarchyeyewear.com>
domain name contains Complainant’s ANARCHY EYEWEAR mark without the space
between the two words and adds the generic top-level domain “.com.” Under Policy ¶ 4(a)(i),
removing spaces and adding top-level domains to a complainant’s mark are
irrelevant in establishing whether or not the disputed domain names are
identical to the mark. Therefore, the
Panel finds that Respondent’s disputed domain name is identical to
Complainant’s ANARCHY EYEWEAR mark pursuant to Policy ¶ 4(a)(i). See
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 <anarchyeyewear.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).
Complainant has alleged that Respondent is not commonly known by the <anarchyeyewear.com> domain name. The WHOIS information identifies Respondent as “Kevin Daste,” and Complainant has alleged that Respondent is not licensed or authorized to use Complainant’s ANARCHY EYEWEAR mark. The Panel cannot find any other evidence in the record suggesting that Respondent is commonly known by the name. Therefore, the Panel concludes that Respondent is not commonly known by the <anarchyeyewear.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. 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 RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
Respondent is using the <anarchyeyewear.com> domain name to display hyperlinks that advertise Complainant’s and its competitors’ products, as well as various unrelated products and services. None of these uses constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is partly using the <anarchyeyewear.com> domain name to display hyperlinks that advertise Complainant’s competitors’ products. Such use of the disputed domain name likely disrupts Complainant’s business by diverting business away from Complainant. Therefore, the Panel finds that such use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Respondent is also using the <anarchyeyewear.com> domain name to display hyperlinks that advertise products and services completely unrelated to Complainant’s business. Respondent likely receives click-through fees for each redirected Internet user. Therefore, such registration and use of the disputed domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain).
Respondent’s use of the <anarchyeyewear.com> domain name, which is identical to Complainant’s ANARCHY EYEWEAR mark, is likely to cause confusion among customers searching for Complainant’s products. Specifically, customers may become confused as to the affiliation, endorsement, or sponsorship of the products advertised on Respondent’s website. Therefore, the Panel finds that such use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
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 <anarchyeyewear.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: February 12, 2007
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