Art Renewal Center, Inc. v. Shandine Tyler
Claim Number: FA0612000877962
Complainant is Art Renewal Center, Inc. (“Complainant”), represented by Peter
E. Nussbaum, of Wolff & Samson PC,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <artrenewalcenter.net> and <artrenewalcenter.org>, registered with Tucows 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 4, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 24, 2007 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@artrenewalcenter.net and postmaster@artrenewalcenter.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<artrenewalcenter.net> and <artrenewalcenter.org>
domain names are identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <artrenewalcenter.net> and <artrenewalcenter.org> domain names.
3. Respondent registered and used the <artrenewalcenter.net> and <artrenewalcenter.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Art Renewal
Center, Inc., is a non-profit corporation that provides art-related goods and
services. Complainant has used the
Respondent registered the <artrenewalcenter.net> domain name on
Respondent’s website was recently taken down by the Registrar, and the disputed domain names are currently not in use.
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 registration of its
Respondent’s <artrenewalcenter.net>
and <artrenewalcenter.org>
domain names both contain Complainant’s ART RENEWAL CENTER mark in its entirety
and add the generic top-level domains “.net” and “.org” respectively. Under Policy ¶ 4(a)(i), the addition of
top-level domains is irrelevant in establishing whether or not a mark is
identical or confusingly similar to the disputed domain name. Therefore, the Panel finds that Respondent’s
disputed domain names are both identical to Complainant’s
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 <artrenewalcenter.net> and <artrenewalcenter.org> domain names. 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). Because of Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain names. 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). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant has alleged that Respondent has never been
commonly known by the <artrenewalcenter.net>
and <artrenewalcenter.org>
domain names. The WHOIS information of the
disputed domain names identifies Respondent as “Shandine Tyler.” Respondent does not have Complainant’s
authorization to use Complainant’s mark, and there is no information in the
record indicating that Respondent is commonly known by the disputed domain
names. Therefore, the Panel finds that
Respondent is not commonly known by the <artrenewalcenter.net>
and <artrenewalcenter.org>
domain names pursuant to Policy ¶ 4(c)(ii).
See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent previously used the <artrenewalcenter.net> and <artrenewalcenter.org> domain
names to redirect Internet users to a website that promoted Respondent’s
competing art-related goods and services under the name “Tyler Art
Studio.” The Panel finds that Respondent’s
previous use of Complainant’s
Respondent is currently not making
any use of the <artrenewalcenter.net>
and <artrenewalcenter.org>
domain names. The Panel finds that such non-use
constitutes neither a bona fide
offering either of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial
or fair use under Policy ¶ 4(c)(iii). See LFP, Inc. v. B & J Props.,
FA 109697 (Nat. Arb. Forum May 30, 2002) (A respondent cannot simply do nothing
and effectively “sit on his rights” for an extended period of time when that
the respondent might be capable of doing otherwise); see also Nike, Inc. v.
Crystal Int’l, D2001-0102 (WIPO Mar. 19, 2001) (finding no rights or
legitimate interests where the respondent made no use of the infringing domain
names).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <artrenewalcenter.net> and <artrenewalcenter.org> domain names previously redirected Internet users to Respondent’s website that promoted competing art-related goods and services. Such use of the disputed domain names likely disrupted Complainant’s business by diverting business away from Complainant. Therefore, the Panel finds that Respondent’s use of the disputed domain names constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Respondent’s previous use of the disputed domain names to redirect Internet users to Respondent’s website that promoted competing art-related goods and services likely caused confusion among customers searching for Complainant’s products. Specifically, customers could have become confused as to the affiliation, endorsement, or sponsorship of the disputed domain name. Therefore, the Panel finds that such previous use of the disputed domain names constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); 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).
Respondent is currently not making any use of the <artrenewalcenter.net> and <artrenewalcenter.org> domain names. The Panel finds that such non-use constitutes bad faith pursuant to Policy ¶ 4(a)(iii). See 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); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s passive holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
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 <artrenewalcenter.net> and <artrenewalcenter.org> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 12, 2007
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