Captain Lord Mansion Inc. v. Whois ID Theft Protection
Claim Number: FA0703000944517
Complainant is Captain Lord Mansion, Inc. (“Complainant”), represented by Mitchell
M. Musial, of Mitchell M. Musial II PLLC, 6960 Abbott
Terrace,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <captainlordmansion.com>, registered
with Rebel.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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On April 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 25, 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@captainlordmansion.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
<captainlordmansion.com>
domain name is identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <captainlordmansion.com> domain name.
3. Respondent registered and used the <captainlordmansion.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Captain Lord Mansion Inc., has operated a Bed
and Breakfast hotel in
Respondent registered the disputed 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.
As Complainant’s USPTO registration was not timely, Complainant
asserts common law rights in the
Complainant asserts common law right in the
Respondent’s disputed domain name contains Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Once Complainant makes a prima
facie case in support of its allegations, the burden shifts to Respondent
to show that it does possess rights or legitimate interests pursuant to Policy
¶ 4(a)(ii). The Panel finds that
Complainant’s submission establishes a prima
facie case in this instance. See Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376
(WIPO
Complainant contends that Respondent is using the disputed domain name to resolve to a website were Respondent presumably receives click-through fees by displaying a series to links to commercial websites. The Panel finds that Complainant’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); 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).
A review of Respondent’s WHOIS registration information
reveals that the registrant of the <captainlordmansion.com>
domain name is “Whois ID Theft Protection.”
Lacking evidence pointing to a contrary conclusion, the Panel finds that
Respondent is not commonly known by the mark pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website
featuring links to various competing websites.
The Panel finds that such use amounts to a disruption of Complainant’s
business and evinces registration and use in bad faith pursuant to Policy ¶
4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO
Presumably, Complainant enriches itself by garnering click-through revenue fees from the operation of its disputed domain name website. The Panel finds that Respondent’s use amounts to an attraction for commercial gain, which evinces registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also CMG Worldwide, Inc. v. Lombardi, FA 95966 (Nat. Arb. Forum Jan. 12, 2001) (finding that the respondent’s use of the complainant’s VINCE LOMBARDI mark to divert Internet users to its commercial website located at the <vincelombardi.com> domain name constituted bad faith use and registration of the disputed domain name).
The Panel finds that Policy ¶ 4(b)(iv) 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 <captainlordmansion.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: May 14, 2007
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