International Theatres Corporation v. Whois ID Theft Protection c/o Domain Admin
Claim Number: FA0704000967654
Complainant is International Theatres Corporation (“Complainant”), represented by Andrew
S. Ehard, of Merchant & Gould, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <chanhassendinnertheater.com>, registered with eNom, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On May 22, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 11, 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@chanhassendinnertheater.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 <chanhassendinnertheater.com> domain name is confusingly similar to Complainant’s CHANHASSEN DINNER THEATRES mark.
2. Respondent does not have any rights or legitimate interests in the <chanhassendinnertheater.com> domain name.
3. Respondent registered and used the <chanhassendinnertheater.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, International Theatres Corporation, offers various dinner theater services. Complainant and its predecessors-in-interest have offered these services under the CHANHASSEN DINNER THEATRES mark since at least 1979. Complainant holds a trademark and service mark registration with the United States Patent and Trademark Office (“USPTO”) for the CHANHASSEN DINNER THEATRES mark (Reg. No. 1,871,384 issued January 3, 1995).
Respondent registered the <chanhassendinnertheater.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.
The Panel finds that Complainant’s registration of the
CHANHASSEN DINNER THEATRES mark with the USPTO sufficiently establishes
Complainant’s rights in the mark. See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The Panel finds that Respondent’s <chanhassendinnertheater.com> domain name is confusingly similar to Complainant’s
CHANHASSEN DINNER THEATRES mark as it consists of the dominant portion of
Complainant’s mark and simply transposes “re” to “er” at the end of the word
“theatre,” two spellings that are phonetically identical. Also, the disputed domain name is confusingly
similar because it omits the “s” found at the end of Complainant’s mark. Moreover, because a generic top-level domain
(“gTLD”) is a required part of all domain names, the addition of the gTLD
“.com” to Complainant’s mark does not render the disputed domain name distinct.
Accordingly, Respondent’s disputed
domain name is confusingly similar to Complainant’s mark under Policy ¶
4(a)(i). See Hewlett-Packard Co. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must first establish that Respondent lacks rights or legitimate interests with respect to the disputed domain name. However, once Complainant makes a prima facie case, the burden of proof shifts to Respondent, who must prove it has rights or legitimate interests in the <chanhassendinnertheater.com> domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
From Respondent’s WHOIS information, there is no indication that Respondent is commonly known by the <chanhassendinnertheater.com> domain name, and the record shows no other evidence suggesting that Respondent is commonly known by the disputed domain name. In addition, Complainant asserts that Respondent is not licensed or authorized to use the CHANHASSEN DINNER THEATRES mark and is not associated with Complainant in any way. The Panel thus finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent is using the <chanhassendinnertheater.com> domain name to display links to various websites. These include links to Complainant’s own website and links to the websites of its direct competitors, as well as links to non-competing websites. The Panel presumes that Respondent is using the disputed domain name to obtain click-through fees and accordingly finds neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also 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).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <chanhassendinnertheater.com>
domain name to divert Internet users to a website that contains links to
related and unrelated third-party websites. The Panel finds that displaying a website that
offers services that compete with Complainant constitutes disruption and is
evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Based on the uncontested evidence presented by Complainant,
the Panel also finds that Respondent receives click-through fees for the links
displayed on the website that resolves from the <chanhassendinnertheater.com> domain name. Moreover, the Panel finds that Respondent’s
use of the disputed domain name creates a likelihood of confusion as to the
source and affiliation of Complainant with the <chanhassendinnertheater.com> domain name. Such
use constitutes bad faith registration and use under 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 Am.
Univ. v. Cook, FA 208629 (Nat. Arb. Forum
Dec. 22, 2003) (“Registration and use of a domain name that incorporates
another's mark with the intent to deceive Internet users in regard to the
source or affiliation of the domain name is evidence of bad faith.”).
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 <chanhassendinnertheater.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 18, 2007
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