Brainbuzz.com Inc. v. eTechsol.com c/o
Atif Hameed
Claim
Number: FA0508000535458
Complainant is Brainbuzz.com Inc. (“Complainant”), represented
by J. Todd Timmerman, of Shumaker, Loop & Kendrick, LLP, Post Office Box 172609, Tampa, FL 33672-0609. Respondent is eTechsol.com c/o Atif Hameed (“Respondent”), 33 k/l
Model Town, Lahore, Punjab, 54000, Pakistan.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <cramsession.biz>, registered with Onlinenic,
Inc. d/b/a China-Channel.com.
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.
James
A. Carmody, Esq., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on August
8, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 9, 2005.
On
August 11, 2005, Onlinenic, Inc. d/b/a China-Channel.com confirmed by e-mail to
the National Arbitration Forum that the <cramsession.biz> domain
name is registered with Onlinenic, Inc. d/b/a China-Channel.com and that
Respondent is the current registrant of the name. Onlinenic, Inc. d/b/a China-Channel.com has verified that
Respondent is bound by the Onlinenic, Inc. d/b/a China-Channel.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
August 16, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 6, 2005 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@cramsession.biz by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
September 12, 2005, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed
James A. Carmody, Esq., 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 (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 <cramsession.biz>
domain name is identical to Complainant’s CRAMSESSION mark.
2. Respondent does not have any rights or
legitimate interests in the <cramsession.biz> domain name.
3. Respondent registered and used the <cramsession.biz>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Brainbuzz.com, Inc., is in the business of providing study guides and exam
preparation materials for certification exams in the information technology
industry to the consuming public through its website at
<cramsession.com>. Complainant
and its predecessor in interest have been continuously using the CRAMSESSION
mark in connection with the provision of study guides and exam preparation
materials for information technology certification exams since 1997.
Respondent,
eTechsol.com, registered the <cramsession.biz> domain name on
November 8, 2004. Respondent is using
the disputed domain name to redirect Internet users to Respondent’s commercial
website featuring study guides and exam preparation materials that compete with
Complainant’s business.
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.
Under Policy ¶
4(a)(i), a complainant need not hold a registered trademark to establish rights
in a mark. Complainant’s CRAMSESSION
mark has acquired secondary meaning through Complainant’s continuous use of the
mark in commerce since 1997 in connection with Complainant’s study guides and
exam preparation materials. Thus,
Complainant has established common law rights in the CRAMSESSION mark. See SeekAm. Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000)
(finding that the Rules do not require that the complainant’s trademark or
service mark be registered by a government authority or agency for such rights
to exist); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat.
Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use
was continuous and ongoing, and secondary meaning was established); see also
Keppel TatLee Bank v. Taylor,
D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of
the said name [<keppelbank.com>] in connection with its banking business,
it has acquired rights under the common law).
Respondent’s <cramsession.biz>
domain name is identical to Complainant’s CRAMSESSION mark because the domain
name features Complainant’s mark in its entirety and merely adds the generic
top-level domain “.biz” to the mark.
The Panel finds that such a minor addition to Complainant’s mark is
insufficient to negate the identical aspects of Respondent’s domain name pursuant
to Policy ¶ 4(a)(i). See Isleworth Land
Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002)
(finding it is a “well established principle that generic top-level domains are
irrelevant when conducting a Policy ¶ 4(a)(i) analysis”); see also Nev.
State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum
Dec. 6, 2003) (“It has been established that the addition of a generic
top-level domain is irrelevant when considering whether a domain name is
identical or confusingly similar under the Policy.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has
alleged that Respondent does not have rights or legitimate interests in the <cramsession.biz>
domain name. Once Complainant makes a prima
facie case in support of its allegations, the burden shifts to Respondent
to prove that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). Due to Respondent’s failure
to respond to the Complaint, the Panel assumes that Respondent does not have
rights or legitimate interests in the disputed domain name. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that, where the complainant has asserted that respondent does not have
rights or legitimate interests with respect to the domain name, it is incumbent
on respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”); see also Clerical Med. Inv.
Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding
that, under certain circumstances, the mere assertion by the complainant that
the respondent does not have rights or legitimate interests is sufficient to
shift the burden of proof to the respondent to demonstrate that such a right or
legitimate interest does exist).
Respondent is
using the <cramsession.biz> domain name to redirect Internet users
to Respondent’s commercial website featuring goods and services that compete
with Complainant’s business. Respondent’s
use of a domain name that is identical to Complainant’s CRAMSESSION mark to
redirect Internet users interested in Complainant’s products to a website that
offers similar goods in competition with Complainant’s business is not a use in
connection with a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use of the
domain name pursuant to Policy ¶ 4(c)(iii).
See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb.
Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK
mark to market products that compete with Complainant’s goods does not
constitute a bona fide offering of goods and services.”); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is
not using the disputed domain name in connection with a bona fide offering of
goods and services because Respondent is using the domain name to divert
Internet users to <visual.com>, where services that compete with
Complainant are advertised.”); see also Or. State Bar v. A Special Day, Inc.,
FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal
services and sale of law-related books under Complainant's name is not a bona
fide offering of goods and services because Respondent is using a mark
confusingly similar to the Complainant's to sell competing goods.”).
Moreover,
Respondent has offered no evidence and there is no proof in the record
suggesting that Respondent is commonly known by the <cramsession.biz>
domain name. Thus, Respondent has not
established rights or legitimate interests in the <cramsession.biz>
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 interests 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); see also Gallup Inc.
v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding
that the respondent does not have rights in a domain name when the respondent
is not known by the mark); see also
Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5,
2001) (finding no rights or legitimate interests because the respondent was not
commonly known by the disputed domain name nor was the respondent using the
domain name in connection with a legitimate or fair use).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is
using the <cramsession.biz> domain name, which is identical to
Complainant’s CRAMSESSION mark, to redirect Internet users to Respondent’s
commercial website featuring goods and services that compete with Complainant’s
business. The Panel finds that such use
constitutes disruption and is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad
faith by attracting Internet users to a website that competes with the
complainant’s business); see also Puckett
v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent
diverted business from the complainant to a competitor’s website in violation
of Policy ¶ 4(b)(iii)).
The Panel infers
that Respondent receives click-through fees for diverting Internet users to a
competing website. Because Respondent’s
domain name is identical to Complainant’s CRAMSESSION mark, Internet users accessing
Respondent’s domain names may become confused as to Complainant’s affiliation
with the resulting website. Thus,
Respondent’s use of the <cramsession.biz> domain name constitutes
bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See
Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if
the respondent profits from its diversionary use of the complainant’s mark when
the domain name resolves to commercial websites and the respondent fails to
contest the complaint, it may be concluded that the respondent is using the
domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat.
Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed
Internet users seeking the complainant’s site to its own website for commercial
gain).
The Panel finds
that Policy ¶ 4(a)(iii) has been 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 <cramsession.biz> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated:
September 19, 2005
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