Apple Computer Inc. v. Denis Synashko d/b/a
Global Connect Network
Claim Number: FA0601000636423
PARTIES
Complainant is Apple Computer,
Inc., Cupertino, CA (“Complainant”) represented by Aaron Hendelman, of Wilson
Sonsini Goodrich & Rosati. Respondent
is Denis Synashko d/b/a Global Connect Network (“Respondent’),
17th, Ak. Filatova str., Odessa 65080, Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <appledeals.us>,
registered with Wild West Domains, 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.
Honorable Karl V. Fink (Ret.), as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on January 26, 2006; the Forum received a hard
copy of the Complaint on January 27, 2006.
On January 27, 2006, Wild West Domains, Inc. confirmed by e-mail to the
Forum that the <appledeals.us>
domain name is registered with Wild West Domains, Inc. and that
Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by
the Wild West Domains, Inc. registration agreement and has thereby agreed to
resolve domain-name disputes brought by third parties in accordance with the U.
S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On February 1, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of February 21, 2006 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 February 28, 2006, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Honorable Karl V.
Fink (Ret.), 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. 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 <appledeals.us> domain name is confusingly similar to Complainant’s APPLE mark.
2.
Respondent does not have any rights or legitimate
interests in the <appledeals.us> domain name.
3.
Respondent registered and used the <appledeals.us>
domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant Apple Computer, Inc. is a global
manufacturer, distributor, and marketer of personal computers and
computer-related products and services, including peripheral devices, Internet
resources, and downloadable music services.
Complainant operates brick-and-mortar stores and an e-commerce website,
and also authorizes various third-party retail outlets to sell its
products. Complainant has been using
the APPLE and APPLE COMPUTER marks in connection with its computer- and
music-related products and services since 1977. Due to extensive advertising around the world, Complainant’s
APPLE mark is frequently ranked as one of the top 50 most recognizable brands
in various surveys and reports.
Complainant has registered the APPLE mark with
the United States Patent and Trademark Office (“USPTO”) on numerous occasions
(U.S. Reg. No. 1,114,431 issued on March 6, 1979; U.S. Reg. No. 2,180,949
issued on August 11, 1998; U.S. Reg. No. 2,657,931 issued on December 10, 2002;
U.S. Reg. No 2,690,881 issued on February 25, 2003; U.S. Reg. No. 2,693,317
issued on March 4, 2003; U.S. Reg. No. 2,715,578 issued on May 13, 2003; U.S.
Reg. No. 2,753,069 issued on August 19, 2003; U.S. Reg. No. 2,820,066 issued on
March 2, 2004). Complaint also owns
trademark rights with the USPTO in numerous other marks, including APPLEDESIGN,
APPLEFAX, APPLELINK, and APPLEMAIL.
Complainant has also registered variations of the APPLE mark around the
world. Complainant registered the <apple.com>
domain name in 1987 and the <applecomputer.com> domain name in 1996.
Respondent registered the <appledeals.us>
domain name on January 17, 2006.
Respondent is using the disputed domain name
to operate a website selling Complainant’s computer and music products. Respondent states on its website that it is
the Internet sales division of Apple Deals, LLC, an authorized reseller of
Complainant’s products. Respondent’s
website also uses a logo that mimics the logo for Complainant’s APPLE mark.
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 the 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 the 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 the Respondent is identical or
confusingly similar to a trademark or service mark in which the Complainant has
rights; and
(2) the 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.
Complainant has established rights
in the APPLE mark through registration of the mark with the USPTO. See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003)
(“Complainant's federal trademark registrations establish Complainant's rights
in the BLIZZARD mark.”); see also Innomed Techs.,
Inc. v. DRP Servs., FA 221171 (Nat. Arb.
Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO
establishes Complainant's rights in the mark.”).
Respondent’s <appledeals.us> domain name is confusingly similar to Complainant’s APPLE mark pursuant to Policy ¶ 4(a)(i), because it incorporates Complainant’s entire mark and merely adds the generic term “deals” and the generic top-level domain “.us.” Neither addition to Complainant’s mark distinguishes the disputed domain name from the mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also 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).
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 <appledeals.us> domain name. Complainant has the initial burden of proof in establishing that Respondent has no rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); 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 has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the
Complaint raises a presumption that Respondent has no rights or legitimate
interests in the <appledeals.us> domain name. See
BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000)
(“By not submitting a response, Respondent has failed to invoke any
circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any
rights or legitimate interests in the domain name”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on
Respondent's failure to respond, it is presumed that Respondent lacks all
rights and legitimate interests in the disputed domain name.”). However, the Panel will now examine the
record to determine if Respondent has rights or legitimate interests under
Policy ¶ 4(c).
Respondent is using the <appledeals.us> domain name, which is confusingly similar to Complainant’s APPLE mark, to divert Internet users seeking Complainant’s computer- and music-related products and services to Respondent’s own website selling the same items. On its website, Respondent purports to be an authorized reseller of Complainant’s products and services and displays Complainant’s APPLE mark, and therefore Respondent profits from misdirecting customers to the <appledeals.us> domain name. Such use of the disputed domain name for commercial gain does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iv). See Vapor Blast Mfg. Co. v. R & S Techs., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent, an unauthorized reseller of the complainant’s products, did not have rights or legitimate interests in a domain name that was confusingly similar to the complainant’s mark); see also Jaccard Corp. v. GDC, FA 152463 (Nat. Arb. Forum June 19, 2003) (stating that as there was “no evidence of an agreement between Complainant and Respondent whereby Respondent has either or both of a privilege to have registered, and a privilege to use, the mark that is the subject of one or more of Complainant's trademarks as a domain name” the respondent had no rights or legitimate interests in the disputed domain name); see also Nat’l Collegiate Athletic Ass’n v. Halpern, D2000-0700 (WIPO Dec. 10, 2000) (finding that domain names used to sell the complainant’s goods without the complainant’s authority, as well as others’ goods, is not bona fide use).
Moreover, Respondent
has registered the domain name under the name “Denis Synashko d/b/a Global
Connect Network.” There is no evidence
in the record suggesting that Respondent is the owner or beneficiary of a trade
or service mark that is identical to the domain name pursuant to Policy ¶
4(c)(i) or is commonly known by the <appledeals.us> domain name
under Policy ¶ 4(c)(iii). Therefore,
Respondent has not established rights or legitimate interests in the <appledeals.us>
domain name. See Am. Online, Inc. v. World
Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13,
2002) (finding that the respondent was not commonly known by <aolcamera.com>
or <aolcameras.com> because the respondent was doing business as “Sunset
Camera” and “World Photo Video & Imaging Corp.”); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David
Sanders.’ Given the WHOIS domain name
registration information, Respondent is not commonly known by the
[<awvacations.com>] domain name.”).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using
the <appledeals.us> domain name, which includes Complainant’s
APPLE mark, to misdirect Internet users seeking Complainant’s computer- and
music-related products and services to Respondent’s own website offering
similar items for sale without authorization.
Respondent deceives Internet users into believing it is an authorized
reseller of Complainant’s products and services by displaying Complainant’s
APPLE mark and images of Complainant’s products and, therefore, is taking
advantage of the likelihood of confusion between Respondent’s domain name and
Complainant’s mark and capitalizing on the goodwill associated with the
mark. The Panel finds that such use
provides evidence of bad faith registration or use pursuant to Policy ¶
4(b)(iv). See World Wrestling Fed’n Entm’t, Inc. v.
Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001) (concluding that the
respondent registered and used the <wwfauction.com> domain name in bad
faith because the name resolved to a commercial website that the complainant’s
customers were likely to confuse with the source of the complainant’s products,
especially because of the respondent’s prominent use of the complainant’s logo
on the site); see also Fossil Inc.
v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (finding that the
respondent acted in bad faith by registering the <fossilwatch.com> domain
name and using it to sell various watch brands where the respondent was not
authorized to sell the complainant’s goods); see also AT&T Corp. v. RealTime Internet.com Inc., D2001-1487 (WIPO May 1, 2002) (“[U]se of domain names to
sell Complainant’s goods and services without Complainant's authority . . . is
bad faith use of a confusingly similar domain name.”).
In addition, Respondent purports to be an authorized reseller of Complainant’s products and services and displays Complainant’s logo for the APPLE mark on its website, even though Complainant has never authorized Respondent to use the mark or sell its products and services. Therefore, Respondent has registered the <appledeals.us> domain name primarily for the purpose of disrupting Complainant’s business pursuant to Policy ¶ 4(b)(iii). See Lambros v. Brown, FA 198963 (Nat. Arb. Forum Nov. 19, 2003) (finding that the respondent registered a domain name primarily to disrupt its competitor when it sold similar goods as those offered by the complainant and “even included Complainant's personal name on the website, leaving Internet users with the assumption that it was Complainant's business they were doing business with”); see also Fossil, Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the <fossilwatch.com> domain name from the respondent, a watch dealer not otherwise authorized to sell the complainant’s goods, to the complainant).
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 <appledeals.us>
domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: March 10, 2006
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