Allposters.com, Inc. v. Konstantinos Kintis
Claim Number: FA0604000697551
PARTIES
Complainant is Allposters.com,
Inc. (“Complainant”), 2100 Powell
Street, 13th Floor, Emeryville, CA 94608. Respondent is Konstantinos Kintis (“Respondent”), 1 Sampsountos street, Drossia,
Athens, Attica 14572, Greeece.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allposters.us>,
registered with Go Daddy Software, 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.
Louis E. Condon as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on April 28, 2006; the Forum received a hard copy
of the Complaint on May 1, 2006.
On April 28, 2006, Go Daddy Software, Inc. confirmed by e-mail to the
Forum that the <allposters.us>
domain name is registered with Go Daddy Software, Inc. and that Respondent
is the current registrant of the name. Go
Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy
Software, 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 May 5, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of May 25, 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 June 1, 2006, pursuant to Complainant’s request to have the dispute
decided by a single-member Panel, the Forum appointed Louis E. Condon 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 <allposters.us> domain name is confusingly similar to Complainant’s ALLPOSTERS.COM mark.
2.
Respondent does not have any rights or legitimate
interests in the <allposters.us> domain name.
3.
Respondent registered and used the <allposters.us>
domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Allposters.com, Inc. holds a
trademark registration with the United States Patent and Trademark Office
(“USPTO”) for the ALLPOSTERS.COM mark (Reg. No. 2,651,217 issued November 19,
2002), in connection with the online advertisement and sale of fine art, color,
pictorial, movie, sports, music and photographic posters and prints and framing
and mounting services.
Respondent registered the <allposters.us>
domain name on August 2, 2005.
Respondent is using the disputed domain name to operate a website that
features commercial links to third-party websites.
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 ALLPOSTERS.COM mark through registration with the USPTO. See 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.”); see also 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.”).
Complainant
contends that Respondent’s <allposters.us> domain name
is confusingly similar to Complainant’s mark.
Respondent’s disputed domain name features the dominant portion of
Complainant’s mark and replaces the “.com” portion with “.us.” The Panel finds this change insufficient to
distinguish Respondent’s domain name from Complainant’s mark pursuant to Policy
¶ 4(a)(i). See Busy Body, Inc. v.
Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition
of the generic top-level domain (gTLD) name ‘.com’
is . . . without legal significance since use of a gTLD is
required of domain name registrants . . . ."); 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 <allposters.us>
domain name. Once Complainant makes a prima
facie case in support of its allegations, a rebuttable presumption exists
that Respondent lacks rights or legitimate interests pursuant to Policy ¶
4(a)(ii). Furthermore, the burden
shifts to Respondent to show otherwise.
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); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000)
(finding that failing to respond allows a presumption that the complainant’s
allegations are true unless clearly contradicted by the evidence). However, the Panel chooses to analyze
whether the evidence supports rights or legitimate interests.
Respondent has failed to set forth evidence showing trademark rights in the <allposters.us> domain name. As a result, the Panel finds that Respondent does not have rights or legitimate interests pursuant to Policy ¶ 4(c)(i). Moreover, Complainant contends that Respondent is using the confusingly similar <allposters.us> domain name to operate a website that features commercial links to third-party websites from which Respondent presumably receives referral fees. The Panel finds that such use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
Furthermore, Complainant contends that Respondent is neither commonly known by the disputed domain name nor licensed to register domain names featuring Complainant’s mark or any variation thereof. Without evidence to suggest otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name for purposes of Policy ¶ 4(c)(iii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); see also 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).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <allposters.us> domain name to operate a website that features commercial links to third-party websites from which Respondent presumably receives referral fees. The Panel infers that Respondent receives click-through fees for misleading consumers to these websites. Therefore, Respondent is taking advantage of the likelihood of confusion between Respondent’s domain name and Complainant’s mark and capitalizing on the goodwill of the mark. The Panel finds that such use constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <allposters.us> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: June 14, 2006
Click Here to
return to the main Domain Decisions Page.
Click
Here to return to our Home Page