Universal Spheres, Inc. d/b/a Goldenpalace.com v. Eric Sijbesma
Claim Number: FA0606000743610
Complainant is Universal Spheres, Inc. d/b/a Goldenpalace.com (“Complainant”), represented by Marc J. Randazza, 781 Douglas Avenue, Alamonte Springs, FL 32714. Respondent is Eric Sijbesma (“Respondent”), Hofpoort 63, Nieuw Vennep, Noord Holland 2152 EJ, Netherlands.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <goldenpalace-poker-casino-blackjack.com>, registered with Dstr Acquisition Vii, Llc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 30, 2006; the National Arbitration Forum received a hard copy of the Complaint on July 3, 2006.
On July 11, 2006, Dstr Acquisition Vii, Llc confirmed by e-mail to the National Arbitration Forum that the <goldenpalace-poker-casino-blackjack.com> domain name is registered with Dstr Acquisition Vii, Llc and that Respondent is the current registrant of the name. Dstr Acquisition Vii, Llc has verified that Respondent is bound by the Dstr Acquisition Vii, Llc 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 July 13, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 2, 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@goldenpalace-poker-casino-blackjack.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 8, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant holds registrations with the United States Patent and Trademark office (“USPTO”) for the GOLDEN PALACE trademark (Reg. No 2,591,351 issued July 9,2002; 2,591,350 issued July 9, 2002).
Complainant holds similar trademark registrations with the Canadian Intellectual Property Office (“CIPO”).
Complainant uses the GOLDEN PALACE mark in connection with offering online gaming goods and services.
In order to operate its online gaming website, Complainant has used the GOLDEN PALACE mark to register the <goldenpalace.com> domain name.
Respondent is not affiliated with Complainant, and Complainant has not given Respondent permission to use Complainant’s mark in a domain name.
Respondent registered the <goldenpalace-poker-casino-blackjack.com> domain name on November 12, 2005.
Respondent is using the disputed domain name to redirect
Internet users to a third-party website located at the
<captaincookscasino.com> domain name, which is an online gaming website
in direct competition with that of Complainant.
Respondent’s <goldenpalace-poker-casino-blackjack.com> domain name is confusingly similar to Complainant’s GOLDEN PALACE mark.
Respondent does not have any rights or legitimate interests in the <goldenpalace-poker-casino-blackjack.com> domain name.
Respondent registered and uses the <goldenpalace-poker-casino-blackjack.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the GOLDEN PALACE mark through registration with the USPTO. Such registration is sufficient to establish rights pursuant to Policy ¶ 4(a)(i). 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.
Turning, then, to the companion question of identity-confusing similarity, the <goldenpalace-poker-casino-blackjack.com> domain name is confusingly similar to Complainant’s GOLDEN PALACE mark. The disputed domain name incorporates Complainant’s GOLDEN PALACE mark in its entirety, merely adding terms (“poker,” “casino” and “blackjack”) that are descriptive of Complainant’s business, all separated by hyphens. The addition to Complainant’s mark of terms descriptive of Complainant’s business does not overcome the confusing similarity between the disputed domain name and Complainant’s mark. Thus the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001):
[T]he fact that a domain name wholly incorporates a Complainant’s
registered mark is sufficient to establish identity or confusing similarity for
purposes of the Policy despite the addition of other words to such marks.
See
also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb.
Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is
confusingly similar to the complainant’s HOYLE mark, and that the addition of
“casino,” a generic word describing the type of business in which the
complainant is engaged, does not take the disputed domain name out of the realm
of confusing similarity). Further see Health
Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003):
“[T]he addition of punctuation marks such as hyphens is irrelevant in the
determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or
legitimate interests in the disputed domain name. Complainant’s assertion constitutes a prima facie case and
shifts the burden to Respondent to demonstrate that it has rights or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). When evaluating the available evidence to
determine whether Respondent has rights or legitimate interests as provided for
in Policy ¶ 4(c), the Panel may view Respondent failure to respond as evidence
that Respondent lacks rights or legitimate interests in the disputed domain
name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Aug. 21, 2000) (holding that once a complainant asserts that a respondent has
no rights or legitimate interests with respect to a domain, the burden shifts
to that respondent to provide “concrete evidence that it has rights to or
legitimate interests in the domain name at issue.”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002):
Respondent's failure to respond not only
results in its failure to meet its burden, but also will be viewed as evidence
itself that Respondent lacks rights and legitimate interests in the disputed
domain name.
The Panel will nonetheless examine
the available evidence to determine whether or not Respondent has rights or
legitimate interests pursuant to Policy ¶ 4(c).
Respondent is using the <goldenpalace-poker-casino-blackjack.com>
domain name to redirect Internet users to an online gaming website located at
the domain name <captaincookscasino.com>. The latter site competes directly with Complainant’s business.
Presumably, Respondent receives referral commission fees from the competing
website for each redirected Internet user.
Such use is neither a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use
pursuant to policy ¶ 4(c)(iii). See Coryn
Group, Inc. v. Media Insight, FA
198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that a respondent was not using
domain names for a bona fide offering of goods or services nor a
legitimate noncommercial or fair use because that respondent used the names to
divert Internet users to a website that offered services competing with those
offered by a complainant under its marks); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat.
Arb. Forum Dec. 1, 2003) (finding that a respondent was not using the domain
name within the parameters of Policy ¶ 4(c)(i) or (iii) because that respondent
used the domain name to take advantage of a complainant's mark by diverting
Internet users to a competing commercial site).
Furthermore,
there is no available evidence that Respondent is commonly known by the <goldenpalace-poker-casino-blackjack.com>
domain name. Respondent’s WHOIS
information identifies Respondent as “Eric Sijbesma,” which is not similar to
the disputed domain name. Complainant
asserts, without contradiction from Respondent, that Respondent is not
affiliated with Complainant and that Complainant has not given Respondent
permission to use Complainant’s mark in a domain name. From the available evidence, the Panel
concludes that Respondent is not commonly known by the disputed domain name and
lacks rights or legitimate interests in it within the meaning of Policy ¶
4(c)(ii). See Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (noting
that “nothing in Respondent’s WHOIS information implies that Respondent is
‘commonly known by’ the disputed domain name” is a factor in determining that
Policy ¶ 4(c)(ii) does not apply); see
also Compagnie de Saint
Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no
rights or legitimate interest where a respondent was not commonly known by the
mark there in question and never applied for a license or permission from a
complainant to use the trademarked name).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
The <goldenpalace-poker-casino-blackjack.com>
domain name is confusingly similar to Complainant’s GOLDEN PALACE mark, thus
making it possible for Internet users seeking Complainant’s genuine website
through an Internet search engine to be redirected through Respondent’s domain
name to a located at the domain name <captaincookscasino.com>. Because that website is also an online
gaming site, and because of the confusing similarity between the disputed
domain name and Complainant’s mark, it is likely that Internet users will be
confused into believing that the competing website has an affiliation with
Complainant. Respondent presumably
profits from this confusion by receiving referral commission fees whenever
Internet users travel to the competing website through Respondent’s domain
name. This is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Luck's Music Library v. Stellar Artist Mgmt.,
FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that a respondent engaged in
bad faith use and registration by using domain names that were identical or
confusingly similar to a complainant’s mark to redirect users to a website that
offered services similar to those offered by that complainant); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000)
(finding bad faith where a respondent's use of the domain name there at issue
to resolve to a website where similar services are offered to Internet users is
likely to confuse the user into believing that a complainant is the source of
or is sponsoring the services offered at the site).
Moreover, it is evident that Respondent registered the
contested domain name with actual or constructive knowledge of Complainant’s
rights in the GOLDEN PALACE mark by virtue of Complainant’s prior registrations
of its mark with the USPTO and CIPO.
Registration of a confusingly similar domain name despite such actual or
constructive knowledge evidences bad faith registration and use of the domain
name pursuant to Policy ¶ 4(a)(iii).
See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24,
2002); see also Orange Glo Int’l v.
Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <goldenpalace-poker-casino-blackjack.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 21, 2006
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