DECISION

 

American Information Corporation v. Seocho

Claim Number: FA0106000097727

 

PARTIES

Complainant is American Information Corporation, d/b/a American Information Network, Calverton, MD, USA (“Complainant”) represented by Sherry H. Flax, of Saul Ewing LLP.  Respondent is Seocho, Seoul, Korea (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <blomp.com> registered with Bulkregister.com.

 

PANEL

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.

 

Hon. James A. Carmody, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 22, 2001; the Forum received a hard copy of the Complaint on June 25, 2001.

 

On June 25, 2001, Bulkregister.com confirmed by e-mail to the Forum that the domain name <blomp.com> is registered with Bulkregister.com and that Respondent is the current registrant of the name.  Bulkregister.com has verified that Respondent is bound by the Bulkregister.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 June 26, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 16, 2001 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@blomp.com by e-mail.

 

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

 

On July 23, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed the Hon. James A. Carmody as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

The <blomp.com> domain name is confusingly similar to Complainant’s BLOMP mark.

 

Respondent has no rights or legitimate interests in the <blomp.com> domain name.

 

Respondent registered and used the <blomp.com> domain name in bad faith.

 

B. Respondent

No Response was received.

 

FINDINGS

Complainant has used its BLOMP mark continuously since June 2000.  Complainant’s <blomp.com> domain name registration was to be renewed through Register.com upon its expiration on June 6, 2001, however inconsistencies in its contact information prevented it from automatic renewal, and the disputed domain name became available for registration to the general public.

 

Respondent registered the <blomp.com> domain name on June 6, 2001.  Respondent is using the disputed domain name to redirect users to websites containing pornographic material.

 

DISCUSSION

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

 

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

 

Identical and/or Confusingly Similar

Complainant has established rights in the BLOMP mark through its continuous use in commerce.  See Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (finding that the Uniform Domain Name Dispute Resolution Policy does not require “that a trademark be registered by a governmental authority for such rights to exist”).  The ICANN dispute resolution policy is “broad in scope” in that “the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice” to support a domain name complaint under the policy.  McCarthy on Trademarks and Unfair Competition, § 25:74.2, Vol. 4 (2000).

 

The <blomp.com> domain name is identical to Complainant’s BLOMP mark.  See Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark).  The addition of the “.com” to the end of the disputed domain name is insignificant for finding that a disputed domain name is identical or confusingly similar to a complainant’s mark.  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 Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

Respondent has failed to come forward to demonstrate it has rights or legitimate interests in the <blomp.com> domain name.  See 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”). 

 

Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to a disputed domain name where Respondent fails to submit a response.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

 

It is not a bona fide offering of goods or services for Respondent to link the <blomp.com> domain name to websites which offer pornographic material.  See MatchNet plc v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that it is not a bona fide offering of goods or services to use a domain name for commercial gain by attracting Internet users to third party sites offering sexually explicit and pornographic material, where such use is calculated to mislead consumers and tarnish the Complainant’s mark).

 

Evidence that Complainant previously owned the registration for the <blomp.com> domain name, combined with Respondent’s registration of the disputed domain name on the day of expiration, further supports a finding that Respondent does not have rights or legitimate interests in the <blomp.com> domain name.  See American Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interest in the domain name).

 

There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the <blomp.com> domain name, pursuant to Policy ¶ 4(c)(ii).  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark).

 

Furthermore, there is no evidence that demonstrates Respondent is making a legitimate noncommercial, or fair use of the <blomp.com> domain name pursuant to Policy ¶ 4(c)(iii).  See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding that use of the domain name to direct users to other, unconnected websites does not constitute a legitimate interest in the domain name).

 

The Panel finds that Respondent has no rights or legitimate interests in the disputed domain names, and that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

Respondent’s use of the <blomp.com> domain name to redirect Internet users to websites containing pornographic material is evidence of bad faith.  See Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users to his website for commercial gain and linked his website to pornographic websites); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).

 

Furthermore, bad faith is evidenced by the fact that Respondent is attracting Internet users, assumedly for commercial gain, to Respondent’s website by creating a likelihood of confusion with Complainant’s BLOMP mark, pursuant to Policy ¶ 4(b)(iv).  See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the Respondent registered the domain name <bigtex.net> to infringe on the Complainant’s good will and attract Internet users to the Respondent’s website).

 

Bad faith is further evidenced by the fact that Complainant previously owned the registration of the <blomp.com> domain name, and that on the day of its expiration, Respondent immediately registered the disputed domain name.  See InTest Corp. v. Servicepoint, FA 95291 (Nat. Arb. Forum Aug. 30, 2000) (finding that where the domain name has been previously used by the Complainant, subsequent registration of the domain name by anyone else indicates bad faith, absent evidence to the contrary); see also BAA plc v. Spektrum Media Inc., D2000-1179 (WIPO Oct. 17, 2000) (finding bad faith where Respondent took advantage of the Complainant’s failure to renew a domain name).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

 

Accordingly, it is Ordered that the <blomp.com> domain name be transferred from Respondent to Complainant.

 

 

Hon James A. Carmody  , Panelist

 

Dated: July 25, 200l

 

 

Click Here to return to the main Domain Decisions Page.

 

Click Here to return to our Home Page