InPhonic Inc. v. Rick Rahim and BusinessVentures.com
Claim Number: FA0607000755048
Complainant is InPhonic Inc. (“Complainant”), represented by Paul C. Jorgensen, of Patton Boggs LLP, 2550 M Street NW, Washington, DC 20037. Respondent is Rick Rahim and BusinessVentures.com (“Respondent”), 9893 Georgetown Pike, Great Falls, VA 22066.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <inphonictruth.com>, registered with eNom, 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 July 19, 2006; the National Arbitration Forum received a hard copy of the Complaint on July 20, 2006.
On July 20, 2006, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <inphonictruth.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 July 26, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 15, 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@inphonictruth.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 21, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <inphonictruth.com> domain name is confusingly similar to Complainant’s INPHONIC mark.
2. Respondent does not have any rights or legitimate interests in the <inphonictruth.com> domain name.
3. Respondent registered and used the <inphonictruth.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, InPhonic Inc., is a leading online seller of wireless services and products, well known through its brand names, including INPHONIC. Through its website, <inphonic.com>, Complainant provides telecommunications goods and services through websites that it creates and manages for online businesses, national retailers, member-based organizations and associations under their own brands. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the INPHONIC mark (Reg. No. 2,630,092 issued October 8, 2002).
Respondent registered the <inphonictruth.com> domain name on June 12, 2006. Respondent has not made any use of the disputed domain name since its registration.
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 established with extrinsic evidence in this
proceeding that it has rights in the INPHONIC mark. The Panel accepts Complainant’s trademark registration as
evidence that it has rights in the INPHONIC mark 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.”); see also 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.”).
The Panel finds that Respondent’s <inphonictruth.com>
domain name is confusingly similar to Complainant’s INPHONIC mark because it
merely adds the term “truth,” which does not significantly distinguish the
domain name from the mark pursuant to Policy ¶ 4(a)(i). See Arthur Guinness Son & Co.
(Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding
confusing similarity where the domain name in dispute contains the identical
mark of the complainant combined with a generic word or term); see also
Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that
because the subject domain name incorporates the VIAGRA mark in its entirety,
and deviates only by the addition of the word “bomb,” the domain name is
rendered confusingly similar to the complainant’s mark).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established that it has rights to and legitimate interests in the mark contained within the disputed domain name. Under Policy ¶ 4(a)(ii), the burden is on Complainant to prove Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also 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.”).
Respondent has not made any use of the <inphonictruth.com> domain name since registering it on June 12, 2006. Internet users who seek out the resultant website are directed to a website that does not display any information, indicating that the domain name is not associated with any websites. The Panel finds that Respondent registered a domain name incorporating Complainant’s mark but has not posted any content at the resultant website. Such nonuse does not constitute 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 AT&T Corp. v. Domains by Brian Evans, D2000-0790 (WIPO Sept. 27, 2000) (finding no rights or legitimate interests where the 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 the complainant’s trademark claims); see also 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 the respondent might be capable of doing otherwise).
Moreover, Respondent has registered the domain name under
the name “BusinessVentures.com” and there is no evidence in the record
suggesting that Respondent is commonly known by the <inphonictruth.com>
domain name. Thus, Respondent has not
established rights or legitimate interests in the <inphonictruth.com>
domain name pursuant to Policy ¶ 4(c)(ii).
See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16,
2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has
been commonly known by the domain name prior to registration of the domain name
to prevail"); see also Great S. Wood Preserving, Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000)
(finding that the respondent was not commonly known by the domain name
<greatsouthernwood.com> where the respondent linked the domain name to
<bestoftheweb.com>).
The Panel finds Complainant satisfied Policy ¶ 4(a)(ii).
Complainant also alleged that Respondent acted in bad
faith. Respondent has not posted any
content at the website associated with the <inphonictruth.com> domain
name. With no content associated at the
website and no evidence of Respondent’s preparations to use the disputed domain
name, the Panel concludes that Respondent registered and used the <inphonictruth.com>
domain name in bad faith, pursuant to Policy ¶ 4(a)(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 Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent's passive holding of the
<aolfact.com> domain name for over six months is evidence that Respondent
lacks rights and legitimate interests in the domain name.”).
The Panel finds Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <inphonictruth.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 4, 2006
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