Alchemy Copyrights, LLC v. GEORGE RICHEY FAMILY PARTNERSHIP, LP
Claim Number: FA1508001635234
Complainant is Alchemy Copyrights, LLC (“Complainant”), represented by Meredith D. Pikser of Reed Smith LLP, New York, USA. Respondent is GEORGE RICHEY FAMILY PARTNERSHIP, LP (“Respondent”), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tammywynette.com>, registered with Network Solutions, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 26, 2015; the Forum received payment on August 26, 2015.
On August 28, 2015, Network Solutions, LLC confirmed by e-mail to the Forum that the <tammywynette.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 31, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 21, 2015 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@tammywynette.com. Also on August 31, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On September 28, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed pmd 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant uses the TAMMY WYNETTE mark in connection with its business in the entertainment industry, specifically with regards to country music.
Complainant holds multiple trademark registrations for the TAMMY WYNETTE mark, for example, Patent and Trademark (“USPTO”) Registry Number 2,367,997 (July 18, 2000).
Complainant has rights under Policy ¶ 4(a)(i). Respondent’s <tammywynette.com> domain name is identical to Complainant’s mark as it merely eliminates spacing between words and appends the generic top-level domain “.com.”
Respondent has no rights or legitimate interests in the <tammywynette.com> domain name. Respondent is not commonly known by the disputed domain name and has not received any permission to register Complainant’s mark in connection with domain names. Further, Respondent has not used the <tammywynette.com> domain name in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, Respondent uses Complainant’s licensee to display content.
Respondent has registered and used the <tammywynette.com> domain name in bad faith. Respondent has registered, used and inactively held the disputed domain name in bad faith and with actual knowledge of Complainant’s rights in the TAMMY WYNETTE mark. Further, Complainant and Respondent previously entered into an agreement in which Respondent agreed to transfer the domain name to Complainant for the price of $7,500. Complainant paid the money, but Respondent has failed to transfer the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TAMMY WYNETTE mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent agreed to transfer the domain name for valuable consideration which was paid by Complainant. Respondent failed to transfer the domain name without cause.
Respondent uses the at-issue domain name to display content and to hold against the interests of Complainant.
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."
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.
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.”).
The at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant holds multiple trademark registrations for the TAMMY WYNETTE mark including but not limited to United States Patent and Trademark (“USPTO”) Registry Number 2,367,997 (July 18, 2000) . Such registrations are sufficient evidence to allow the Panel to find that Complainant has rights under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Respondent’s <tammywynette.com> domain name contains Complainant’s entire trademark less it space, with the generic top-level domain “.com” appended thereto The trivial differences between Respondent’s domain name and Complainant’s trademark do nothing to differentiate the two for the purposes of the Policy and therefore the Panel finds Respondent’s at-issue domain name is identical to Complainant’s trademark pursuant to Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for the at-issue domain name lists “George Richey Family Partnership, LP” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <tammywynette.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Additionally, there is no evidence that would lead the Panel to conclude that Respondent uses the at-issue domain name in a manner that suggests either a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
As discussed below, circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Prior to filing its Complaint, Complainant entered into an agreement with Respondent whereby Complainant would pay Respondent to transfer the domain name to Complainant. While Complainant fully satisfied its duty under the agreement, Respondent did not. Instead Respondent failed and refused to transfer the domain name and made additional demands on Complainant as further conditions of transferring the domain name. Although not one of the enumerated bad faith circumstances set out with particularity in paragraph 4(b) of the Policy, Respondent’s foul behavior is sufficient for the Panel to find that Respondent acted in bad faith regarding the <tammywynette.com> domain name. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also, Starbuzz Tobacco, Inc. v. Wenzhou Horizon Culture Media Co. Ltd., D2010-0251 (WIPO May 12, 2010) (finding “what is borne out of the facts is that the Respondent failed to make good on its promise to transfer the Disputed Domain Name under the transfer agreement. One can only wonder whether the Respondent anticipated some benefit or otherwise for the transfer which failed to materialize” and holding “that the third limb of paragraph 4(a) 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 <tammywynette.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 1, 2015
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