Possis Medical, Inc. v. CDN Properties Incorporated
Claim Number: FA0704000964416
Complainant is Possis Medical, Inc. (“Complainant”), represented by Hugh
D. Jaeger, of Hugh D. Jaeger, P.A.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <angiojet.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 18, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 19, 2007.
On April 18, 2007, Dotster confirmed by e-mail to the National Arbitration Forum that the <angiojet.com> domain name 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 April 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 21, 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@angiojet.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 24, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <angiojet.com> domain name is identical to Complainant’s ANGIOJET mark.
2. Respondent does not have any rights or legitimate interests in the <angiojet.com> domain name.
3. Respondent registered and used the <angiojet.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Possis Medical, Inc., has registered the ANGIOJET mark with the United States Patent and Trademark Office (“USPTO”) in connection with rheolytic thrombectomy devices and rheolytic thrombectomy catheters (Reg. No. 1,976,193 issued May 28, 1996). Complainant also holds trademark registrations for the mark with the Office for Harmonization in the Internal Market (Reg. No. 2,481,836 issued March 31, 2003) and the Japan Patent Office (Reg. No. 4,604,473 issued September 13, 2002).
Respondent registered the <angiojet.com> domain name on December 31, 2003. The disputed domain name currently resolves to a commercial web directory with links to health-related products and services. Complainant claims that none of the resulting websites are relevant to its use of the ANGIOJET mark or the goods it offers for sale under that mark.
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 trademark registrations for the ANGIOJET mark sufficiently establish its rights in the mark for purposes of satisfying Policy ¶ 4(a)(i). See Thermo Electron Corp. et al. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (holding that the complainants established rights in marks because the marks were registered with a trademark authority); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant demonstrated its rights in the SPORTSCENTER mark through its valid trademark registrations with the USPTO and similar offices around the world).
The Panel cannot identify any distinguishable
characteristics in the <angiojet.com>
domain name. It wholly incorporates
Complainant’s registered ANGIOJET mark and merely adds the generic top-level
domain (“gTLD”) “.com,” which is a functional change required of every domain
name registration. Consequently, the
Panel finds that the contested domain name is identical to Complainant’s mark
pursuant to Policy ¶ 4(a)(i). See Jerry
Damson, Inc. v.
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant maintains that Respondent has no rights or
legitimate interests in the <angiojet.com>
domain name. It is Complainant’s burden
to make out a prima facie case that
Respondent has no rights or legitimate interests, and then the burden shifts to
Respondent to demonstrate that it does have rights or legitimate interests
pursuant to Policy ¶ 4(a)(ii). See ALPITOUR
S.p.A. v. Albloushi, FA
888651 (Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires that the complainant must show that the
respondent has no rights to or legitimate interests in the subject domain name
and that once the complainant makes this showing, the burden of production
shifts to the respondent to rebut the complainant’s allegations); see also SEMCO Prods., LLC v. dmg world media (
In this case, however, Respondent has not provided a Response. Therefore, the Panel presumes that Respondent lacks rights and legitimate interests in the disputed domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence”). Nevertheless, the Panel will now examine the record to see if Respondent has any rights or legitimate interests pursuant to Policy ¶ 4(c).
Under Policy ¶ 4(c)(ii), Respondent can establish rights or
legitimate interests if it is commonly known by the disputed domain name. The only evidence available to the Panel on
this element is the WHOIS information, which lists “CDN Properties
Incorporated” as the registrant of the <angiojet.com>
domain name. Given the lack of evidence
in the record to indicate otherwise, the Panel finds that Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns
v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum
Aug. 3, 2006) (finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the
WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA
715089 (Nat. Arb. Forum July 17, 2006) (concluding that the
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the WHOIS information, suggesting
that the respondent was commonly known by the disputed domain name).
Under Policy ¶ 4(c)(i), Respondent can establish
rights or legitimate interests if it is using the <angiojet.com> domain name in connection with a bona fide offering of goods or
services. In this case, Respondent’s
website at the disputed domain name merely displays links to websites unrelated
to Complainant. Respondent is likely
earning click-through fees for diverting Internet users seeking Complainant to
this website. Therefore, Respondent is
not using the disputed domain name in connection with a bona fide offering of goods or services. Respondent’s use also does not fall within a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii),
for Respondent is likely profiting from this diversion scheme. The Panel therefore concludes that Respondent
does not have rights or legitimate interests under either Policy ¶ 4(c)(i) or ¶
4(c)(iii). See Summit
Group, LLC v. LSO, Ltd., FA
758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of
the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to
respondent’s own website for commercial gain does not constitute either 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
also Constellation Wines U.S., Inc. v.
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
By diverting Internet users seeking Complainant to a commercial web directory with links to websites unrelated to Complainant, Respondent has shown that it is taking advantage of the likelihood of confusion between Complainant’s ANGIOJET mark and Respondent’s <angiojet.com> domain name and likely profiting from the goodwill associated with the mark in the form of click-through fees. The Panel finds that such registration and use constitutes bad faith according to Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes that Complainant has 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 <angiojet.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 5, 2007
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