WebEx Communications, Inc. v. DSTR Acquisition VII, LLC
Claim Number: FA0703000933207
Complainant is WebEx Communications, Inc. (“Complainant”), represented by Johanna
F. Sistek, of Sistek Law Group,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <webex.org>, registered with Dotregistrar, LLC.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 6, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 8, 2007.
On March 7, 2007, Dotregistrar, LLC confirmed by e-mail to the National Arbitration Forum that the <webex.org> domain name is registered with Dotregistrar, LLC and that Respondent is the current registrant of the name. Dotregistrar, LLC has verified that Respondent is bound by the Dotregistrar, LLC 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 13, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 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@webex.org 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 <webex.org> domain name is identical to Complainant’s WEBEX mark.
2. Respondent does not have any rights or legitimate interests in the <webex.org> domain name.
3. Respondent registered and used the <webex.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, WebEx
Communications, Inc., is a provider of web-based multimedia teleconferencing,
video-conferencing, and web-based meetings.
Complainant’s products and services allow customers to schedule,
conduct, and monitor online meetings and seminars among remote users
worldwide. In connection with its online
conferencing services and support software, Complainant has registered the
WEBEX mark with the United States Patent and Trademark Office (“USPTO”) (Reg.
No. 2,102,292 issued September 30, 1997).
Respondent registered the <webex.org>
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 has established rights in the WEBEX mark
pursuant to Policy ¶
4(a)(i) through its registration of the mark with the USPTO. See
Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The <webex.org> domain name is identical to Complainant’s WEBEX mark because the disputed domain name fully incorporates Complainant’s mark and merely adds the generic top-level domain “.org.” Because the addition of a generic top-level domain is entirely functional, it is irrelevant to Policy ¶ 4(a)(i) analysis. Therefore, the Panel finds that Complainant’s mark and the disputed domain name are identical under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or
legitimate interests in the <webex.org>
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 Respondent failed 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) (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); see also American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Respondent is using the <webex.org> domain name, which is identical to Complainant’s WEBEX
mark, to divert
Internet users to a website that advertises links to websites that sell web
conferencing, online meetings, and webinar services that compete with
Complainant. Such use of the disputed
domain name does not constitute a bona fide offering of
goods and services pursuant to Policy ¶ 4(c)(i), or a legitmate noncommercial or fair use of
the domain name pursuant to Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v.
BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed
domain name in connection with a bona
fide offering of goods and services because Respondent is using the domain
name to divert Internet users to <visual.com>, where services that
compete with Complainant are advertised.”); see
also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum
Dec. 5, 2003) (finding that the respondent was not using the domain names for a
bona fide offering of goods or services nor a legitimate noncommercial
or fair use because the respondent used the names to divert Internet users to a
website that offered services that competed with those offered by the
complainant under its marks).
Complainant asserts that
Respondent is not licensed or otherwise authorized to use Complainant’s WEBEX mark and that Respondent is not an authorized distributor
of Complainant’s services. Furthermore,
Respondent’s WHOIS information, as well as other information in the record,
does not suggest that Respondent is commonly known by the <webex.org> domain name. Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <webex.org>
domain name, which is identical to Complainant’s WEBEX
mark, to divert Internet users seeking Complainant’s products and
services to a website containing a directory of links to other products and
services, many of which compete with Complainant. Respondent’s use of Complainant’s mark to
divert Internet users to Complainant’s competitors amounts to a disruption of
Complainant’s business pursuant to Policy ¶ 4(b)(iii). See
EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO
Because Respondent is using the disputed domain name to
divert Internet users to several third-party websites, the Panel infers that
Respondent earns click-through revenues for each user successfully
diverted. Such use for Respondent’s own commercial gain is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v.
Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002)
(finding that the respondent registered and used the domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly
similar domain name to attract Internet users to its commercial website).
The Panel finds 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 <webex.org> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 16, 2007
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