Insight for Living v.
Claim Number: FA1004001322316
Complainant is Insight for Living (“Complainant”), represented by S.
Brent Thompson, of Insight for Living,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <insightforliving.net>, registered with Directnic, Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on April 30, 2010.
On April 30, 2010, Directnic, Ltd confirmed by e-mail to the National Arbitration Forum that the <insightforliving.net> domain name is registered with Directnic, Ltd and that Respondent is the current registrant of the name. Directnic, Ltd has verified that Respondent is bound by the Directnic, Ltd 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 6, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@insightforliving.net. Also on May 6, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 3, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.
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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <insightforliving.net> domain name is identical to Complainant’s INSIGHT FOR LIVING mark.
2. Respondent does not have any rights or legitimate interests in the <insightforliving.net> domain name.
3. Respondent registered and used the <insightforliving.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Insight for
Living, holds a trademark registration for its INSIGHT FOR LIVING mark with the
United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,692,099 issued
March 4, 2003) in connection with its Christian teaching and inspirational
materials.
Respondent, Belize Domain WHOIS Service Lt, registered the disputed domain name on June 16, 2005. The disputed domain name resolves to a website featuring links to both unrelated websites and spiritual websites in direct competition with Complainant.
Respondent has been the respondent is multiple prior UDRP
proceedings in which the disputed domain names were transferred from Respondent
to the complainant in those cases. See Bath & Body Works Brand Mgm.t, Inc. v.
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.
Complainant asserts rights in its INSIGHT FOR LIVING mark
based on its registration of the mark with the USPTO (Reg. No. 2,692,099 issued March 4, 2003).
The Panel finds that Complainant’s registration of its INSIGHT FOR
LIVING mark with the USPTO is sufficient evidence of Complainant’s rights in
the mark for the purposes of Policy ¶ 4(a)(i).
See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26,
2006) (finding that the complainant had established rights in the PENTIUM,
CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Miller Brewing
Complainant alleges that Respondent’s <insightforliving.net> domain name is identical to
Complainant’s INSIGHT FOR LIVING mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name
incorporates the entirety of Complainant’s mark and merely eliminates the spaces
between the words in Complainant’s mark and adds the generic top-level domain
(“gTLD”) “.net.” The Panel finds that
the elimination of the spaces between words in a complainant’s mark and the
addition of a gTLD are not sufficient to distinguish a disputed domain name
from a mark. See Bond & Co. Jewelers, Inc. v.
The
Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant must first make a prima facie case in support of its allegations that Respondent lacks rights and legitimate interests in the disputed domain name. The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the allegations contained in the Complaint, the Panel finds that Complainant has established a prima facie case. The Panel also infers that Respondent’s failure to submit a Response is additional evidence that Respondent lacks rights and legitimate interests in the disputed domain name. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the disputed domain name. The WHOIS information lists the registrant of the disputed domain name as “Belize Domain WHOIS Service Lt.” The Panel finds that the WHOIS information, along with Complainant’s assertion that Complainant never gave Respondent permission or agreed to allow Respondent to use Complainant’s mark in a domain name, is evidence that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent is using disputed domain name to redirect Internet users to Respondent’s website featuring links to both unrelated websites and spiritual websites in direct competition with Complainant. The Panel finds that Respondent’s use of the disputed domain name for such purposes is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) is satisfied.
Complainant asserts that Respondent has been the respondent
in multiple other UDRP cases which resulted in the transfer of the disputed
domain names to the complainants in those cases. See Bath & Body Works Brand Mgm.t, Inc. v.
Respondent is using the disputed domain name to display
links to third-party spiritual websites in direct competition with
Complainant. As a result, Internet users
who seek to purchase Complainant’s products and services may instead, as a
result of Respondent’s resolving website, purchase goods or services from
Complainant’s competitors. The Panel
finds that Respondent’s use of the disputed domain name constitutes a
disruption of Complainant’s business pursuant to Policy ¶ 4(b)(iii). See
Respondent uses the disputed domain name to display
third-party links to both competing and non-competing websites. The Panel presumes that Respondent profits
from the receipt of click-through fees resulting from the displayed third-party
links. The Panel finds that Respondent’s
use of the identical domain name to intentionally attract Internet users for
Respondent’s commercial gain is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See
The Panel finds that Policy ¶ 4(a)(iii) is 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 <insightforliving.net> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: June 9, 2010
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