Oobe, Inc. v. Oobe Music
Claim Number: FA0601000636476
Complainant is Oobe, Inc. (“Complainant”), represented by Jeanene L. Jobst, of Womble Carlyle Sandridge & Rice, PLLC, 1201 W. Peachtree Street, Suite 3500, Atlanta, GA 30309. Respondent is Oobe Music (“Respondent”), 1995 Oak St #5, San Francisco, CA 94117.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <oobe.com>, registered with Network Solutions, Inc.
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.
Tyrus R. Atkinson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 27, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 30, 2006.
On February 1, 2006, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <oobe.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 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 February 2, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 22, 2006 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@oobe.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 1, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, 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 <oobe.com> domain name is identical to Complainant’s OOBE mark.
2. Respondent does not have any rights or legitimate interests in the <oobe.com> domain name.
3. Respondent registered and used the <oobe.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Oobe, Inc., distributes casual clothing and bags via retailers throughout the United States. Complainant also sells its apparel through its website at the <oobegear.com> domain name. Complainant owns trademark registrations with the Untied States Patent and Trademark Office (“USPTO”) for stylized versions of the OOBE mark (Reg. No. 2,014,232 issued February 25, 1997, filed April 21, 1995).
Respondent registered the <oobe.com> domain name on January 7, 1997. Respondent has, for the past two years, used the disputed domain name to operate a website displaying a single design and playing music.
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’s registrations of its OOBE mark with the USPTO
sufficiently establish Complainant’s rights in the mark pursuant to Policy ¶
4(a)(i). In light of the filing date of
Complainant’s registration, Complainant has demonstrated rights in the OOBE
mark prior to Respondent’s registration of the disputed domain name. See Planetary Soc’y v. Rosillo,
D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of
Complainant’s trademark rights date back to the application’s filing date); see
also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (“As
Complainant's filing date for its valid registration of the NAF NATIONAL
ABORTION FEDERATION mark on the Principal Register of the U.S. Patent and
Trademark Office predates Respondent's registration of the disputed domain name
by over a year, this registration is additional evidence of Complainant's
rights in the mark.”).
Complainant has also demonstrated that Respondent’s <oobe.com> domain name is identical to Complainant’s OOBE mark. Respondent’s disputed domain name consists entirely of Complainant’s mark without the stylized script, adding only the generic top-level domain name “.com.” See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent, in failing to respond to the Complaint, has not
come forward with any evidence of rights or legitimate interests in the
disputed domain name. In addition, the
Panel has not found anything in the record to indicate that Respondent has
rights or legitimate interests in the <oobe.com> domain name. Accordingly, the Panel finds that Respondent
has failed to establish rights or legitimate interests pursuant to Policy ¶
4(a)(ii). See Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name); see also Can. Imperial Bank of Commerce v. D3M
Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no
rights or legitimate interests where no such right or interest was immediately
apparent to the panel and the respondent did not come forward to suggest any
right or interest it may have possessed).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has not used the disputed domain name in any
significant manner in over two years.
Given the totality of the circumstances, the Panel finds Respondent’s
activity to be indicative of bad faith under Policy ¶ 4(a)(iii). See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb.
Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant
prove that domain names are being used in bad faith does not require that it
prove in every instance that a respondent is taking positive action. Use in bad
faith can be inferred from the totality of the circumstances even when the
registrant has done nothing more than register the names.”); see also Clerical Med. Inv. Group Ltd. v.
Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely
holding an infringing domain name without active use can constitute use in bad
faith).
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 <oobe.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Panelist
Dated: March 15, 2006
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