Mirta De Perales, Inc. v. Web Enterprises, Inc. c/o Domain Administrator
Claim Number: FA0701000896661
Complainant is Mirta De Perales, Inc. (“Complainant”), represented by Jesus
Sanchelima, of Sanchelima & Associates, P.A.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <mirtadeperales.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
On
On February 1, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 21, 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@mirtadeperales.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 <mirtadeperales.com> domain name is identical to Complainant’s MIRTA DE PERALES mark.
2. Respondent does not have any rights or legitimate interests in the <mirtadeperales.com> domain name.
3. Respondent registered and used the <mirtadeperales.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mirta De
Perales, Inc., has used the MIRTA DE PERALES mark in commerce since 1977 to
promote its cosmetic products.
Complainant holds a registered trademark with the United States Patent
and Trademark Office (“USPTO”) for the MIRTA DE PERALES mark (Reg. No.
1,201,698 issued July 20, 1982).
Respondent, Web Enterprises,
Inc. c/o Domain Administrator, registered the <mirtadeperales.com>
domain name 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’s registration of the MIRTA DE PERALES mark with
the USPTO in 1982 preceded Respondent’s registration of the <mirtadeperales.com> domain name in
1999. Under Policy ¶ 4(a)(i), registration
of a mark with an appropriate governmental authority such as the USPTO confers
rights in that mark to Complainant.
Thus, the Panel finds that Complainant has established rights in the
MIRTA DE PERALES mark pursuant to Policy ¶ 4(a)(i). See Am.
Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO
Respondent’s <mirtadeperales.com>
domain name contains Complainant’s MIRTA DE PERALES mark without the spaces 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 is irrelevant in establishing whether or not the disputed
domain names are identical to the mark.
Therefore, the Panel finds that Respondent’s <mirtadeperales.com> domain name is identical to
Complainant’s MIRTA DE PERALES 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 <mirtadeperales.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 pursuant to Policy ¶ 4(c).
There is no evidence in the record suggesting that
Respondent is commonly known by the <mirtadeperales.com>
domain name. The WHOIS information
identifies Respondent as “Web Enterprises, Inc.
c/o Domain Administrator,” and the Panel can find no other evidence in the
record suggesting that Respondent is commonly known by the disputed domain
name. Thus, the Panel finds that
Respondent is not commonly known by the <mirtadeperales.com> domain name pursuant to Policy ¶
4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not
commonly known by the <cigaraficionada.com> domain name under Policy ¶
4(c)(ii) based on the WHOIS information and other
evidence in the record); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum
Respondent is using the <mirtadeperales.com> domain name to display hyperlinks that
promote various products and services that are unrelated to Complainant’s
products. The Panel does not consider
this use of the disputed domain name to be 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). See 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).”); see also Seiko Kabushiki Kaisha
v. CS into Tech, FA 198795 (Nat. Arb.
Forum Dec. 6, 2003) (“Diverting customers, who are looking for products
relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <mirtadeperales.com> domain name to display hyperlinks that
promote various products and services that are unrelated to Complainant’s
products. Respondent likely receives
click-through fees for each redirected Internet user. Respondent is attempting to commercially
benefit from the goodwill associated with Complainant’s MIRTA DE PERALES mark,
and the Panel finds that such registration and use constitutes bad faith
pursuant to Policy ¶ 4(b)(iv). See Anne
of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution
June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because
the respondent admittedly used the complainant’s well-known mark to attract
users to the respondent's website); see also 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).
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 <mirtadeperales.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 5, 2007
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