Ravensburger Aktiengellschaft v. delux befektetes c/o
Lajos Kiss
Claim Number: FA0703000933228
Complainant is Ravensburger Aktiengellschaft (“Complainant”), represented by Andrew S. Ehard of Merchant & Gould, P.C., P.O. Box 2910, Minneapolis, MN 55402-0910. Respondent is delux befektetes c/o Lajos Kiss (“Respondent”), Akacos utca 14., CSOEMOER 2141, HU.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ravensburger.net>, registered with Enom, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically March 6, 2007; the National Arbitration Forum received a hard copy of the Complaint March 6, 2007.
On March 7, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <ravensburger.net> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. verified that Respondent is bound by the Enom, Inc. registration agreement and thereby has 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 15, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 4, 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@ravensburger.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 10, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <ravensburger.net>, is identical to Complainant’s RAVENSBURGER mark.
2. Respondent has no rights to or legitimate interests in the <ravensburger.net> domain name.
3. Respondent registered and used the <ravensburger.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ravensburger
Aktiengellschaft, is a producer of toys, play things, and books. Complainant holds a registered trademark with
the United States Patent and Trademark Office (“USPTO”) for the RAVENSBURGER
mark (Reg. No. 1,050,624 issued October 19, 1976).
Respondent, delux befektetes c/o Lajos Kiss, registered the <ravensburger.net> domain name December 30, 2005. Respondent is using the disputed domain name to display a list of hyperlinks, some of which lead to the websites of Complainant’s competitors.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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.
Under the Policy, registration of a mark with an appropriate governmental authority confers rights in that mark to Complainant. Since Complainant registered the RAVENSBURGER mark with the USPTO in 1976, the Panel finds that Complainant established rights in the RAVENSBURGER mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2000) (finding that successful trademark registration with the USPTO creates a presumption of rights in a mark).
The disputed domain name that Respondent registered, <ravensburger.net>, incorporates
Complainant’s RAVENSBURGER mark in its entirety and adds the generic top-level
domain (“gTLD”) “.net.” Since the
addition of a gTLD is irrelevant under an analysis of Policy ¶ 4(a)(i), the
Panel concludes that Respondent’s <ravensburger.net>
domain name is identical to Complainant’s RAVENSBURGER mark pursuant to Policy
¶ 4(a)(i). See Katadyn N. Am. v.
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established with extrinsic proof in this proceedings that it has rights to and legitimate interests in the mark contained in its entirety within the disputed domain name. Complainant alleged that Respondent has no such rights or legitimate interests in the <ravensburger.net> 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). 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). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant further alleged that Respondent is not commonly known by the <ravensburger.net> domain name. The WHOIS information identifies Respondent as “delux befektetes c/o Lajos Kiss,” and there is no other evidence in the record indicating that Respondent is commonly known by the disputed domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <ravensburger.net> 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 Sept. 25, 2003) (finding without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
Respondent is using the <ravensburger.net>
domain name to display a list of hyperlinks, some of which lead to
the websites of Complainant’s competitors.
Use of Complainant’s protected mark in this manner does not constitute a
bona fide offering of goods or
services under Policy ¶ 4(c)(i), and does not show a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v.
Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002)
(finding that the respondent’s diversionary use of the complainant’s marks to
send Internet users to a website which displayed a series of links, some of
which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also
Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23,
2004) (“Respondent’s appropriation of the SAFLOK mark to market products that
compete with Complainant’s goods does not constitute a bona fide offering of
goods and services”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant also alleges that Respondent acted in bad faith in registering and using a domain name containing Complainant’s protected mark. Respondent is using the <ravensburger.net> domain name to display a list of hyperlinks, some of which lead to the websites of Complainant’s competitors. This is likely to disrupt Complainant’s business by diverting potential customers to Respondent’s website. The Panel finds that such registration and use of the <ravensburger.net> domain name constitute bad faith pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Svcs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name resolved to a website that displayed commercial links to the websites of the complainant’s competitors); 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)).
Further, the disputed <ravensburger.net> domain name is identical to Complainant’s RAVENSBURGER mark, and it is likely to cause confusion among customers searching for Complainant’s toys, playthings, and books. Specifically, customers may become confused as to the affiliation, endorsement, or sponsorship of the competing goods advertised by the links on Respondent’s website. Respondent presumably receives click-through fees for each misdirected Internet user, and is therefore attempting to commercially benefit from this likelihood of confusion between Respondent’s domain name and the goodwill associated with Complainant’s RAVENSBURGER mark. Therefore, the Panel finds that Respondent’s registration and use of the <ravensburger.net> domain name constitute bad faith pursuant to Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); 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 Complainant 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 <ravensburger.net> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: April 24, 2007.
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