Ritzcraft Corporation of Pennsylvania, Inc. v. Milagros Gonxalez a/k/a Milagros Gonzalez
Claim Number: FA0603000662944
Complainant is Ritzcraft Corporation of Pennsylvania, Inc. (“Complainant”), represented by Kevin M. Gold, of Rhoads & Sinon LLP, PO Box 1146, Harrisburg, PA 17108-1146. Respondent is Milagros Gonxalez a/k/a Milagros Gonzalez (“Respondent”), 2873 Heath Ave, Bronx, NY 10463.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ritzcrafthomes.com>, registered with Digup Domains, 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.
James A, Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 21, 2006; the National Arbitration Forum received a hard copy of the Complaint on March 22, 2006.
On May 16, 2006, Digup Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <ritzcrafthomes.com> domain name is registered with Digup Domains, Inc. and that Respondent is the current registrant of the name. Digup Domains, Inc. has verified that Respondent is bound by the Digup Domains, 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 May 23, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 12, 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@ritzcrafthomes.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 19, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary 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 <ritzcrafthomes.com> domain name is confusingly similar to Complainant’s RITZ-CRAFT mark.
2. Respondent does not have any rights or legitimate interests in the <ritzcrafthomes.com> domain name.
3. Respondent registered and used the <ritzcrafthomes.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ritzcraft Corporation of Pennsylvania, Inc., is the largest family-owned modular and manufactured home company in the United States. Complainant holds a federal trademark registration with the United States Patent and Trademark Office (“USPTO”) for the RITZ-CRAFT mark (Reg. No. 2,154,889 issued May 5, 1998). In connection with its modular and manufactured home business, Complainant registered the <ritz-craft.com> domain name, which resolves to Complainant’s official website and features information regarding Complainant’s business.
Respondent registered the <ritzcrafthomes.com> domain name on April 28, 2006. Respondent’s disputed domain name does not resolve to any website.
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.
The Panel finds that Complainant’s federal trademark registration with the USPTO for the RITZ-CRAFT mark sufficiently establishes rights in the mark for Complainant pursuant to Policy ¶ 4(a)(i). In Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005), the panel held that the complainant established rights in a mark under Policy ¶ 4(a)(i) through its ownership of a trademark registration for the mark with the USPTO. Moreover, the panel in Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003), found that the complainant’s registration of the MADD mark with the United States Patent and Trademark Office established the complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i). Thus, the Panel finds that Complainant has established rights in the RITZ-CRAFT mark under Policy ¶ 4(a)(i).
Furthermore, the Panel finds that Respondent’s <ritzcrafthomes.com> domain name is confusingly similar to Complainant’s RITZ-CRAFT mark under Policy ¶ 4(a)(i). Respondent’s <ritzcrafthomes.com> domain name consists of Complainant’s mark, with the omission of a hyphen and the addition of the word “homes,” and the generic top-level domain “.com.” Prior panels have held that similar alterations to a mark do not negate the confusing similarity created between the mark and the resulting domain name. In Ritz-Carlton Hotel Co. v. Club Car Executive Transp., D2000-0611 (WIPO Sept. 18, 2000), the panel found that removing a hyphen in the domain names was not sufficient to differentiate the disputed domain names from the mark. Moreover, in Disney Enters. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006), the panel found that the alterations to the complainant’s DISNEY mark in the respondent’s <finestdisneyhomes.com> domain name were insufficient to differentiate the domain name from the mark pursuant to Policy 4(a)(i). In Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000), the panel determined 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. Therefore, the Panel finds that the <ritzcrafthomes.com> domain name, which is comprised of alterations to Complainant’s RITZ-CRAFT mark, is confusingly similar to the mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Per Policy ¶ 4(a)(ii), Complainant initially bears the burden of demonstrating that Respondent lacks rights and legitimate interests with respect to the disputed domain name. However, once Complainant establishes a prima facie case, the burden then shifts, and Respondent must demonstrate that it possesses rights or legitimate interests in the disputed domain name in accord with Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). The Panel finds that Complainant has demonstrated a prima facie case and will examine the evidence on record to determine whether Respondent has rights or legitimate interests with respect to the <ritzcrafthomes.com> domain name under Policy ¶ 4(c).
The evidence on record fails to indicate that Respondent is commonly known by the <ritzcrafthomes.com> domain name pursuant to Policy ¶ 4(c)(ii). According to the WHOIS information for the <ritzcrafthomes.com> domain name, Respondent is known as “Milagros Gonxalez” or “Milagros Gonzalez.” Moreover, the evidence on record does not suggest that Respondent is a licensee of Complainant or an authorized user of Complainant’s RITZ-CRAFT mark. Consequently, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See 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.”); see also Club Méditerranée v. Hasidim, D2000-1350 (WIPO Dec. 15, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and the complainant “has not licensed or otherwise authorized the respondent to use any of its trademarks or to apply for any domain name incorporating the trademarks”).
Furthermore, Complainant contends that Respondent has failed to demonstrate any use of the disputed domain name, as the disputed domain name does not resolve to an operating website. Thus, the Panel finds that Respondent’s passive holding of the <ritzcrafthomes.com> domain name registration does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interests can be found when the respondent fails to use disputed domain names in any way).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant provides evidence of its trademark registration for the RITZ-CRAFT mark with the USPTO, which Complainant has held since 1998. In light of Complainant’s trademark registration in the country where Respondent operates, the Panel infers that Respondent must have known of Complainant’s rights in the RITZ-CRAFT mark prior to registering the disputed domain name. Prior panels have found that the passive holding of a well-known mark with knowledge of the complainant’s rights in the mark constitutes bad faith pursuant to Policy ¶ 4(a)(iii). The panel in Unisys Corp. v. Unisys Consulting, LLC, D2004-0138 (WIPO Apr. 15, 2004), considered the wide recognition of the complainant’s mark, as well as the complainant’s registration and use of its mark, in holding that the respondent had knowledge of the complainant’s UNISYS mark. Consequently, the panel in Unisys Corp. found that the respondent’s registration of the <unisysconsulting.com> domain name, despite knowledge of complainant’s rights in the UNISYS mark, was evidence of bad faith registration under Policy ¶ 4(a)(iii). Moreover, in Veuve Cliquot Ponsardin, Masion Fondée en 1772 v. The Polygenix Group Co., D2000-0163 (WIPO May 1, 2000), the panel held that where a complainant’s mark was so obviously connected with well-known products, its very use by someone with no connection to such products suggested opportunistic bad faith. Additionally, in Harrods Ltd. v. Harrod’s Closet, D2001-1027 (WIPO Sept. 28, 2001), the panel found that the passive holding of a disputed domain name for a significant period of time with knowledge of the complainant’s trademark rights constituted bad faith under Policy ¶ 4(a)(iii). Therefore, taking into account Respondent’s constructive knowledge of Complainant’s rights in the well-known RITZ-CRAFT mark and Respondent’s passive holding of the disputed domain name registration, the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
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 <ritzcrafthomes.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: June 28, 2006
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