Associated Volume Buyers, Inc. v. Whois Protection
Claim Number: FA0705000993130
Complainant is Associated Volume Buyers, Inc. (“Complainant”), represented by W.
Scott Creasman, of Powell Goldstein LLP,
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <sleepsource.com>, registered with Rebel.com.
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Bruce E. Meyerson, Anne M. Wallace, and Mark McCormick (chair) as Panelists.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 25, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 29, 2007.
On May 30, 2007, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <sleepsource.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.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 May 31, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 20, 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@sleepsource.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 28, 2007, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson, Anne M. Wallace, and Mark McCormick as Panelists.
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 <sleepsource.com> domain name is identical to Complainant’s SLEEP SOURCE mark.
2. Respondent does not have any rights or legitimate interests in the <sleepsource.com> domain name.
3. Respondent registered and used the <sleepsource.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant Associated Volume Buyers, Inc. (“AVB”) created a retail mattress licensee in 1999 called SLEEP SOURCE, which provides mattress inventories to retailers. In 2002, AVB registered the SLEEP SOURCE mark with the United States Patent and Trademark Office. The <sleepsource.com> domain name was at that time unavailable because it had been registered by an unrelated third party in 1996. AVB in 2004 acquired the <sleepsource.com> domain name from the third party. In 2005, AVB inadvertently let its registration of the domain name lapse. Subsequently, Respondent registered the <sleepsource.com> domain name and began using it. Respondent uses the domain name to link to websites of competitors of AVB. There is no evidence before the Panel to show that Respondent had any rights in the SLEEP SOURCE mark at the time it registered the disputed domain name.
AVB filed a previous complaint against Respondent under the Rules of the Uniform Domain Name Dispute Resolution Policy (“UDRP”) earlier in 2007. In that case, Respondent defaulted. Despite the default, the panel denied transfer of the domain name to AVB based on a finding that Respondent registered the domain name before AVB started using the SLEEP SOURCE mark and thus did not register it in bad faith. See Associated Volume Buyers, Inc. v. Whois ID Theft Protection, FA 938086 (Nat. Arb. Forum May 3, 2007). The present record shows this finding was erroneous because Respondent did not register the disputed domain name until after AVB allowed its registration of the domain name to lapse in 2005. This information was not presented in the prior proceeding.
Respondent has defaulted in the present proceeding.
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.
AVB’s registration of the SLEEP SOURCE mark demonstrates
AVB’s rights in the mark for purposes of Policy ¶ 4(a)(i). See FIA
Card Servs., Nat’l Ass’n v. Impulse Mktg. Group, Net
OPS, FA 944261 (Nat. Arb. Forum
June 18, 2007). AVB established rights
in the mark by this registration and by its prior registration and use of the
domain name <sleepsource.com>,
which occurred prior to Respondent’s later registration of the domain name
after AVB allowed its registration to lapse.
See Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16,
2002). Respondent’s domain name is
identical to AVB’s mark within the meaning of Policy ¶ 4(a)(i). See Reichert, Inc. v. Leonard,
FA 672010 (Nat. Arb. Forum May 24, 2006).
Respondent is using the <sleepsource.com> domain name to maintain a commercial web directory with links to websites in direct competition with AVB for purposes of commercial gain. This is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007). Thus, Respondent has no rights or legitimate interests in the domain name within the meaning of Policy 4 ¶ (a)(ii).
Respondent by registering the domain name after AVB let it lapse did so to redirect Internet users seeking information about AVB’s products to websites of AVB’s competitors for its own commercial gain. In so doing, Respondent sought to profit from AVB’s goodwill. Respondent thus registered and used the domain name in bad faith within the meaning of Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006).
The panel determines that the previous decision on the same claim by AVB against Respondent in Associated Volume Buyers, Inc. v. Whois ID Theft Protection, supra, does not affect AVB’s present claim. Respondent, which defaulted in the prior case, also defaulted here. A plea of res judicata is an affirmative defense. A party that seeks to rely on the doctrine must affirmatively assert its applicability. See 47 Am.Jur.2d §472 (2006). The doctrine is not applicable here because it has not been raised by Respondent.
AVB has demonstrated that the panel in the previous case made a mistake in finding that Respondent, rather than an unrelated third party, had registered the domain name in 1996. Because AVB has in this case carried its burden of proof, it is entitled to an order of transfer.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sleepsource.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Anne M. Wallace, and Mark McCormick, Panelists
By: Mark McCormick, Chair
Dated: July
12, 2007
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