Tetris Holding, LLC v.
Alexandre Rodrigues d/b/a Tetris Technology Servicos de Informatica LTDA
Claim Number: FA0705000989702
PARTIES
Complainant is Tetris Holding, LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tetris.us>, registered with Go Daddy
Software, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On
On May 24, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of June 13, 2007 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On
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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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
1. Respondent’s <tetris.us> domain name is identical to Complainant’s TETRIS mark.
2.
Respondent does not have any rights or
legitimate interests in the <tetris.us>
domain name.
3.
Respondent registered and used the <tetris.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Tetris Holding, LLC, holds
several trademark registrations with the United States Patent and Trademark
Office (“USPTO”) for the TETRIS mark (e.g., Reg. No. 1,657,499 issued
Respondent registered the <tetris.us> domain name on
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 Complainant's undisputed
representations pursuant to Paragraphs 5(f), 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical and/or Confusingly Similar
Complainant has established rights in the
TETRIS mark under Policy ¶ 4(a)(i) through registration of the mark with the
USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Respondent’s <tetris.us> domain name is identical
to Complainant’s TETRIS mark because it uses Complainant’s mark in its entirety
and merely adds the country-code top-level domain (“ccTLD”) “.us” to the
mark. The Panel holds that the addition
of a ccTLD does not distinguish the domain name and therefore the <tetris.us> domain name is identical
to Complainant’s TETRIS mark under Policy ¶ 4(a)(i). See Tropar Mfg. Co. v. TSB, FA
127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the
country-code “.us” fails to add any distinguishing characteristic to the domain
name, the <tropar.us> domain name is identical to the complainant’s
TROPAR mark); see also Mattel, Inc. v. Unknown, FA 490083 (Nat. Arb.
Forum
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant contends that Respondent does not
have rights or legitimate interests in the <tetris.us> domain name.
In the instant proceeding, Complainant’s submission establishes a prima
facie case, which shifts the burden to Respondent to show that Respondent
does have rights or legitimate interests in the <tetris.us> domain name.
See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
The Panel may
assume that Respondent does not have rights or legitimate interests here
because Respondent failed to respond to the Complaint. See Eroski, So. Coop. v. Getdomains
Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003) (“It can be inferred that
by defaulting Respondent showed nothing else but an absolute lack of interest
on the domain name.”); see also Bank of Am. Corp.
v. McCall, FA 135012 (Nat. Arb. Forum Dec.
31, 2002) (“Respondent's failure to respond not only results in its failure to
meet its burden, but also will be viewed as evidence itself that Respondent
lacks rights and legitimate interests in the disputed domain name.”). However, the Panel will consider all
available evidence before determining whether Respondent has rights or
legitimate interests under Policy ¶ 4(c).
While
Complainant has established rights in the TETRIS mark, Respondent has failed to
provide any evidence which demonstrates that it holds a service mark or
trademark in the <tetris.us>
domain name. Therefore, the Panel finds
that Complainant has satisfied Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum
Respondent is using the <tetris.us>
domain name to redirect Internet users to Respondent’s website displaying links
and advertisements to third-party websites, which offer unauthorized copies of
Complainant’s game under the TETRIS mark.
Respondent’s use of the <tetris.us>
domain name to redirect Internet users to third-party websites offering
Complainant’s goods without Complainant’s permission is not a use in connection
with a bona fide offering of goods or services under Policy ¶ 4(c)(ii),
or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001)
(stating that the respondent’s use of the complainant’s entire mark in domain
names makes it difficult to infer a legitimate use); see also Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that
using a domain name to direct Internet traffic to a website featuring pop-up
advertisements and links to various third-party websites is neither a bona
fide offering of goods or services under [UDRP] ¶ 4(c)(i) nor a legitimate
noncommercial or fair use under [UDRP] ¶ 4(c)(iii) because the registrant
presumably receives compensation for each misdirected Internet user).
Finally, Respondent has offered no evidence and there is no evidence
present in the record to indicate that Respondent is commonly known by the <tetris.us> domain name. Respondent’s WHOIS information identified
Respondent as “Alexandre
Rodrigues d/b/a Tetris Technology Servicos de Informatica LTDA.” While Respondent’s WHOIS information includes
the TETRIS mark, Respondent offers no evidence showing that it is commonly
known by the <tetris.us>
domain name beyond the registration of the disputed domain name. Therefore, the Panel finds that Respondent
has failed to establish rights in the <tetris.us>
domain name under Policy ¶ 4(c)(iii). See
Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003)
(finding that the respondent was not “commonly known by” the
<shantiyogaworks.com> domain name despite listing its name as “Shanti
Yoga Works” in its WHOIS contact information because there was “no affirmative
evidence before the Panel that the respondent was ever ‘commonly known by’ the
disputed domain name prior to its registration of the disputed domain name”); see
also City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum
May 5, 2004) (“Although Respondent’s WHOIS information lists its name as
‘citynewsandvideo,’ there is no evidence before the Panel to indicate that
Respondent is, in fact, commonly known by the disputed domain name
<citynewsandvideo.com> pursuant to [UDRP] ¶ 4(c)(ii).”)
The Panel finds that Policy ¶ 4(a)(ii) has
been satisfied.
Registration and Use in Bad Faith
Respondent has registered and is using the
disputed domain name to redirect Internet users to Respondent’s website
displaying advertisements and links offering Complainant’s puzzle game under
the TETRIS mark without Complainant’s authorization. The Panel finds that Respondent’s use of the <tetris.us> domain name constitutes
disruption, which is evidence of bad faith registration and use under Policy ¶
4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368
(WIPO
Respondent is using
the <tetris.us> domain name,
which is identical to Complainant’s TETRIS mark under the Policy, to redirect
Internet users to Respondent’s website for the assumed profit of
Respondent. Since Respondent’s disputed
domain name is identical, Internet users may become confused as to
Complainant’s affiliation with the <tetris.us>
domain name. Presumably, Respondent is
profiting from this confusion through click-through fees. Therefore, the Panel finds that Respondent’s
use of the disputed domain name to redirect Internet users to Respondent’s
website for the profit of Respondent is evidence of 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 [UDRP] ¶ 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. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb.
Forum
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Complainant having established all three
elements required under the usTLD Policy, the Panel concludes that relief shall
be GRANTED.
Accordingly, it is Ordered that the <tetris.us> domain name be TRANSFERRED
from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice,
Supreme Court, NY (Ret.)
Dated: June 29, 2007
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