Chris Robinson Associates Inc v. Domain Magic, LLC
Claim Number: FA0702000916992
Complainant is Chris Robinson Associates Inc (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <chrisrobinsontravelshow.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 13, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2007.
On February 14, 2007, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <chrisrobinsontravelshow.com> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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 March 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 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@chrisrobinsontravelshow.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 3, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), 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 <chrisrobinsontravelshow.com> domain name is identical to Complainant’s CHRIS ROBINSON TRAVEL SHOW mark.
2. Respondent does not have any rights or legitimate interests in the <chrisrobinsontravelshow.com> domain name.
3. Respondent registered and used the <chrisrobinsontravelshow.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Chris Robinson Associates Inc, has continuously
used the CHRIS ROBINSON TRAVEL SHOW mark since March 6, 2004 in connection with
a weekly radio show in
Respondent, Domain Magic, LLC, registered the <chrisrobinsontravelshow.com> domain name on August 19, 2005 and is currently using it to redirect Internet users to a commercial web directory with links to travel-related 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 does not provide any evidence of a valid
trademark registration for the CHRIS ROBINSON TRAVEL SHOW mark. Nevertheless, the Policy does not require a
trademark registration in order for Complainant to establish rights in the
mark. See Franklin Mint Fed. Credit
Union v. GNO, Inc., FA
860527 (Nat. Arb. Forum Feb. 23, 2007) (“The ICANN dispute resolution policy is
thus broad in scope in that the reference to a trademark or service mark in
which Complainant has rights means that ownership of a registered mark is not
required and unregistered or common law trademark or service mark rights will
suffice to support a domain name Complaint under the Policy.”); see also
Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb.
Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark
registration if a complainant can establish common law rights in its
mark). Therefore, the Panel will now
analyze whether or not Complainant has common law rights in the mark pursuant
to Policy ¶ 4(a)(i).
Complainant alleges
that it has used the CHRIS ROBINSON TRAVEL SHOW mark since early 2004 in
association with a talk radio show in
Except for functional changes required of every domain name,
Respondent’s <chrisrobinsontravelshow.com>
domain name is an exact replica of Complainant’s common law CHRIS ROBINSON
TRAVEL SHOW mark. The mere omission of
spaces between terms of a mark and the addition of a generic top-level domain
such as “.com” are not sufficient to distinguish the <chrisrobinsontravelshow.com> domain name from the CHRIS
ROBINSON TRAVEL SHOW mark. Consequently,
the Panel finds the contested domain name to be identical to the mark under
Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007)
(concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,”
or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Croat. Airlines v. Kwen Kijong, AF-0302
(eResolution Sept. 25, 2000) (finding
that the domain name <croatiaairlines.com> is identical to the
complainant's CROATIA AIRLINES trademark).
The Panel concludes that Complainant has satisfied Policy ¶ (4)(a)(i).
In determining whether or not Respondent has rights or legitimate
interests in the <chrisrobinsontravelshow.com>
domain name, it is initially Complainant’s responsibility to make a prima facie case that Respondent lacks
rights and legitimate interests in the contested domain name. Once Complainant has done so, the burden
effectively shifts to Respondent to demonstrate that it has rights or
legitimate interests in the contested domain name. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum
Aug. 18, 2006) (holding that the complainant must first make a prima facie
case that the respondent lacks rights and legitimate interests in the disputed
domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent
to show that it does have rights or legitimate interests in a domain name); see also Swedish Match UK Ltd.
v. Admin, Domain, FA 873137
(Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case
has been established by the complainant under Policy ¶ 4(c), the burden then
shifts to the respondent to demonstrate its rights or legitimate interests in
the disputed domain name).
In cases where a respondent fails to respond, as is the case in the present proceeding, the Panel presumes that Respondent has no rights or legitimate interests in the domain name in dispute. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.’”). Nevertheless, the Panel will still examine whether Complainant has made a prima facie case in support of its contentions that Respondent has no rights or legitimate interests pursuant to Policy ¶ 4(c).
Respondent lists itself as “Domain Magic, LLC” in the WHOIS
contact information and has provided no evidence suggesting that it is commonly
known by the <chrisrobinsontravelshow.com>
domain name. Accordingly, the Panel
finds that Respondent is not commonly known by the contested domain name
according 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 Coppertown Drive-Thru Sys., LLC v. Snowden, FA
715089 (Nat. Arb. Forum July 17, 2006) (concluding that the
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the WHOIS information,
suggesting that the respondent was commonly known by the disputed domain name).
Respondent is using the contested domain name to operate a commercial web directory with links to travel-related products and services that may be of interest to listeners to Complainant’s travel-related radio show. In Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007), the panel found that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process. Because similar circumstances exist here, the Panel cannot characterize Respondent’s use of the <chrisrobinsontravelshow.com> domain name as either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel concludes that Complainant has satisfied Policy ¶ (4)(a)(ii).
Respondent’s use of the <chrisrobinsontravelshow.com> domain name to provide links to travel-related products and services that may be of interest to listeners of Complainant’s travel-related radio show provides evidence that Respondent registered and is using the contested domain name in order to disrupt Complainant’s business. Such registration and use constitutes bad faith according to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent likely earns click-through fees for each consumer
it diverts to other websites via links on its commercial web directory. Therefore, the Panel concludes that
Respondent is taking advantage of the confusing similarity between the <chrisrobinsontravelshow.com>
domain name and Complainant’s mark in order to profit from the goodwill
associated with the CHRIS ROBINSON TRAVEL SHOW mark. This type of conduct suggests that Respondent
registered and is using the contested domain name in bad faith under Policy ¶
4(b)(iv). See Allianz of America Corp.
v. Bond, FA
680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use
under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users
searching for the complainant to its own website and likely profiting from
click-through fees); see also The Univ. of Houston Sys. v. Salvia Corp., FA
637920 (Nat. Arb. Forum Mar. 21, 2006)
(“Respondent is using the disputed domain name to operate a website which
features links to competing and non-competing commercial websites from which
Respondent presumably receives referral fees.
Such use for Respondent’s own commercial gain is evidence of bad faith
registration and use 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 <chrisrobinsontravelshow.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: April 13, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum