Travant Solutions, Inc. v. Don Cole
Claim Number: FA0310000203177
Complainant is Travant Solutions, Inc., Vernon Hills, IL (“Complainant”) represented by Judith L. Grubner, of Michael Best & Friedrich LLC., 401 N. Michigan Ave. Ste. 1900, Chicago, IL 60611-4212. Respondent is Don Cole, 2988 Alexander Road, Laguna Beach, CA 92651 (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travant.com>, registered with Dotster.
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.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on October 14, 2003; the Forum received a hard copy of the Complaint on October 15, 2003.
On October 15, 2003, Dotster confirmed by e-mail to the Forum that the domain name <travant.com> is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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 October 24, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 13, 2003 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 email@example.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On November 25, 2003, 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 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 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 <travant.com> domain name is confusingly similar to Complainant’s TRAVANT SOLUTIONS mark.
2. Respondent does not have any rights or legitimate interests in the <travant.com> domain name.
3. Respondent registered and used the <travant.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant filed an application for the TRAVANT SOLUTIONS mark with the United States Patent and Trademark Office on June 19, 2002, and successfully registered the mark on October 14, 2003 (Reg. No. 2,774,168). Complainant began using the mark in commerce on August 11, 2002 in relation to computer technology, development, and networking services.
The disputed domain name was registered on December 10, 1999 by David Mah. Complainant asserts that, on or around June 13, 2003, David Mah transferred the domain name to Respondent. Respondent has used the domain name to redirect users to a website located at <pinnica.com>, which advertises computer software development and related services, which are offered in competition with Complainant. Text on the website at <pinnica.com> proclaims that that the website operator changed its business name on January 1, 2003 from Pinnica Corporation to Travant Technology Solutions. There is no other evidence in the record that such a name change actually occurred.
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.
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 has established rights in the TRAVANT SOLUTIONS mark through registration and use since 2002. Although the domain name was registered before Complainant acquired rights in the name, the plain meaning of Policy ¶ 4(a)(i) indicates that Complainant’s rights in the mark do not have to precede Respondent’s domain name registration. This is inferred through the absence of language to the contrary, such as that supplied in Policy ¶ 4(a)(iii), which sets a specific time requirement that bad faith be demonstrated upon registration of the domain name.
The issue of whether a domain name is confusingly similar to a registered mark requires only a low threshold of proof. See Desktop Media, Inc. v. Desktop Media, Inc., FA 96815 (Nat. Arb. Forum Apr. 12, 2001) (“[F]or the limited purposes of the domain name dispute resolution process[,] a low threshold of proof is all that is required to meet the first element”).
Furthermore, Complainant had rights in the trademark at the time the domain name was transferred to Respondent. Respondent’s domain name merely deletes SOLUTIONS from Complainant’s TRAVANT SOLUTIONS mark, thereby establishing that the disputed domain name is confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). See Asprey & Garrard Ltd. v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to Complainant’s ASPREY & GARRARD and MISS ASPREY marks); see also WestJet Air Center, Inc. v. West Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to Complainant’s mark, where Complainant holds the WEST JET AIR CENTER mark).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent has not asserted any rights or legitimate interests in the domain name. Therefore, the Panel may draw adverse inferences from Complainant’s allegations, without the benefit of a Response. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint); see also Vertical Solutions Mgmt., Inc. v. Webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where Complainant has asserted that Respondent has no 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 Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
There is superficial evidence that Respondent might be known as “Travant Technology Solutions”, but this evidence lacks credibility. Respondent’s domain name directs users to a website operating as Pinnica Corporation, and Respondent has not provided the Panel with any evidence of a name change, such as a formal government registration. Therefore, Complainant has established that Policy ¶ 4(c)(ii) does not apply to Respondent. See AT&T Corp. v. Domains by Brian Evans, D2000-0790 (WIPO Sept. 27, 2000) (finding no rights or legitimate interests where Respondent did not provide any documentation on the existence of its alleged company that might show what the company’s business was, or how the company’s years of existence, if it ever existed, might mesh with Complainant’s trademark claims).
Furthermore, Respondent has not put forward any evidence that shows the domain name, which infringes upon Complainant’s mark, is used in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶¶ 4(a)(i) & (iii). See eBay Inc. v. Sunho Hong, D2000-1633 (WIPO Jan. 18, 2001) ("use of complainant’s entire mark in infringing domain names makes it difficult to infer a legitimate use"); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”); see also Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services); see also Clear Channel Communications, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that Respondent, as a competitor of Complainant, had no rights or legitimate interests in a domain name that utilized Complainant’s mark for its competing website).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Policy ¶ 4(a)(iii) requires Complainant to prove that the disputed domain name was both registered and used in bad faith. The examples of bad faith in Policy ¶ 4(b) deal specifically with the domain name’s current registrant, not Respondent’s predecessor or a prior registrant. Thus, the Panel finds that, in cases such as this, where the domain name was transferred to a new registrant at a time when the new registrant’s registration of the domain name would be in bad faith, the transfer is tantamount to a new registration and the “bad faith” requirement of Policy ¶ 4(a)(iii) can be proven against the current registrant. See Schmidheiny v. Weber, 319 F.3d 581, 66 U.S.P.Q.2d 1062 (3d Cir. 2003) (holding that the “registration” of a domain name for the purposes of the Anti-cybersquatting Consumer Protection Act includes both the initial registration of the domain name and the subsequent re-registration of that domain name with a different registrar by a different registrant).
Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant, and at the time of the domain name transfer, Respondent should have known of Complainant’s rights in the TRAVANT SOLUTIONS mark, particularly since Complainant attempted to buy the domain name from the prior registrant. See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from Complainant's marks suggests that Respondent, Complainant’s competitor, registered the names primarily for the purpose of disrupting Complainant's business).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
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 <travant.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: December 6, 2003
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