Rural Cellular Corporation v. Centrade Corp c/o Sion Ahdout
Claim Number: FA0611000848830
Complainant is Rural Cellular Corporation (“Complainant”), represented by
The domain name at issue is <unicell.org>, 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
On
On November 27, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 18, 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@unicell.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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <unicell.org> domain name is confusingly similar to Complainant’s UNICELL mark.
2. Respondent does not have any rights or legitimate interests in the <unicell.org> domain name.
3. Respondent registered and used the <unicell.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Rural Cellular Corporation, is a Midwestern provider of telecommunications goods and services. Complainant holds United States Patent and Trademark Office (“USPTO”) registrations for the UNICEL mark (Reg. No. 1,551,307 issued August 8, 1989; Reg. No. 2,356,719 issued June 13, 2000). Complainant utilizes the UNICEL mark in connection with providing telecommunication goods and services. Complainant holds the registration of the <unicel.com> domain name used to provide online information to consumers about phones, service plans and other telecommunication goods and services.
Respondent registered the <unicell.org> domain name on November 8, 2000. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website, featuring links to third-party websites. Many of the linked websites offer telecommunications goods and services in direct competition with Complainant. Other linked websites are unrelated to Complainant’s business, and include online dating services and travel guides.
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.
The Panel finds that Complainant has established rights in the
UNICEL mark through registration of the mark with the USPTO. See Men’s Wearhouse, Inc. v. Wick, FA
117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered
marks hold a presumption that they are inherently distinctive [or] have acquired
secondary meaning.”); 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.”).
Respondent’s <unicell.org> domain name is confusingly similar to Complainant’s UNICEL mark. The disputed domain name differs from Complainant’s mark by only one letter, adding an additional letter “l.” By adding one letter to Complainant’s mark, Respondent has created a domain name that mimics a common typing or spelling error, which does not distinguish the disputed domain name from Complainant’s mark. Further, the addition of the generic top-level domain “.org” does not differentiate the disputed domain name from Complainant’s mark because generic top-level domains are required in all domain names. Thus, the Panel finds that the <unicell.org> domain name is confusingly similar to Complainant’s UNICEL mark pursuant to Policy ¶ 4(a)(i). See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or legitimate interests in the <unicell.org> domain name. Complainant’s assertion constitutes a prima facie case for purposes of the Policy, and shifts the burden to Respondent to demonstrate that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Respondent’s failure to provide a Response suggests to the Panel that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); 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.”). Despite Respondent’s failure to respond, the Panel will examine the available evidence to determine whether Respondent has rights or legitimate interests as contemplated by Policy ¶ 4(c).
Respondent is using the <unicell.org> domain name to redirect Internet users to
Respondent’s website featuring links to third-party websites. Many of the links to third-party websites are
to websites offering telecommunications goods and services in direct
competition with Complainant.
Presumably, Respondent receives pay-per-click referral fees from the
links on its website. The Panel finds
that such use is neither a bona fide offering of goods or services as
contemplated by Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use as
contemplated by Policy ¶ 4(c)(iii). See
TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31,
2002) (finding that the respondent’s diversionary use of the complainant’s
marks to send Internet users to a website which displayed a series of links,
some of which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also Wells
Fargo & Co. v. Lin Shun Shing, FA
205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to
direct Internet traffic to a website featuring pop-up advertisements and links
to various third-party websites is neither a bona fide offering of goods
or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii) because the registrant presumably receives
compensation for each misdirected Internet user).
There is no available evidence to indicate that Respondent is commonly known by the disputed domain name. Respondent’s WHOIS information identifies Respondent as “Sion Ahdout,” a name with no obvious relationship to the <unicell.org> domain name. Further, Complainant asserts that Respondent is not affiliated with Complainant in any way and does not have permission from Complainant to use Complainant’s mark in a domain name. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name and lacks rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one 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 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 <unicell.org> domain name to attract Internet users to its website, which features links to third-party websites offering telecommunications goods and services in direct competition with Complainant. Internet users may find themselves redirected to Respondent’s website when their intent is to visit Complainant’s genuine website found at the <unicel.com> domain name. Redirected Internet users may follow the links on Respondent’s website to websites in competition with Complainant and may do business with those competitors instead of with Complainant, thus disrupting Complainant’s business. The Panel finds that such use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); 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 <unicell.org> domain name is confusingly similar to Complainant’s UNICEL mark. Internet users seeking Complainant’s genuine website may accidentally find themselves redirected instead to Respondent’s website through their Internet search engine or web browser through the accidental addition of an extra letter “l” to Complainant’s mark. Once redirected to Respondent’s website, Internet users may mistakenly believe that Respondent’s website is somehow affiliated with Complainant. Respondent is profiting from this confusion, presumably receiving pay-per-click referral fees from the linked third-party websites featured on its website. The Panel finds that such use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
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 <unicell.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 5, 2007
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