KB Home v. Alan Nguyen
Claim Number: FA0707001045203
Complainant is KB Home (“Complainant”), represented by Sheldon
H. Klein, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <kbhome.mobi> and <kbhomes.mobi>, registered with DomainPeople, Inc.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On July 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 20, 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@kbhome.mobi and postmaster@kbhomes.mobi 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 <kbhome.mobi> domain name is identical to Complainant’s KB HOME mark. Respondent’s <kbhomes.mobi> domain name is confusingly similar to Complainant’s KB HOME mark.
2. Respondent does not have any rights or legitimate interests in the <kbhome.mobi> and <kbhomes.mobi> domain names.
3. Respondent registered and used the <kbhome.mobi> and <kbhomes.mobi> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, KB Home, was founded in 1957 and is widely
known as one of
Respondent, Alan Nguyen, registered the <kbhome.mobi> and <kbhomes.mobi> domain names on September 28, 2006. The disputed domain names resolve to a webpage stating that it is “under construction.”
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 holds two registered trademarks with the USPTO
for the KB HOME mark. Under the Policy,
registration of a mark with an appropriate governmental authority confers
rights in that mark to Complainant. Therefore,
the Panel finds that Complainant has established rights in the KB HOME mark
pursuant to Policy ¶ 4(a)(i). See Mattel, Inc. v. KPF, Inc., FA 244073 (Nat. Arb. Forum
Respondent’s <kbhome.mobi> domain name contains
Complainant’s KB HOME mark in its entirety without the space and adds the
generic top-level domain (“gTLD”) “.mobi.”
In George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007), the panel concluded that
eliminating the space between terms of a mark and adding the gTLD
“.mobi” rendered the <gwbakeries.mobi>
domain name identical to the complainant’s GW BAKERIES mark under Policy
¶ 4(a)(i). In Starkey v. Bradley, FA 874575 (Nat. Arb.
Forum Feb. 12, 2007), the panel stated that “[t]he suffix .mobi should be
treated the same way as .com and should be ignored when comparing the mark and
the disputed domain name.” Like the
disputed domain name in George Weston,
Respondent’s <kbhome.mobi> domain name removes the
space between the two terms in Complainant’s KB HOME mark. Furthermore, like the disputed domain names
in George Weston and Starkey, Respondent’s <kbhome.mobi>
domain name adds the gTLD “.mobi” which the Panel concludes is not relevant to
an analysis under Policy ¶ 4(a)(i).
Therefore, the Panel finds that Respondent’s <kbhome.mobi>
domain name is identical to Complainant’s KB HOME mark pursuant to Policy ¶
4(a)(i).
Respondent’s <kbhomes.mobi> domain name is similar to the other disputed domain name, but it also adds an “s” to the end of Complainant’s mark. Previous panels have concluded that the addition of the letter “s” to a complainant’s mark in a disputed domain name renders that domain name confusingly similar to the mark under Policy ¶ 4(a)(i). See T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the <barnesandnobles.info> and <barnesandnobles.biz> domain names are confusingly similar to the complainant’s BARNESANDNOBLE.COM mark because the additions of the letter “s” and generic top-level domains to the dominant features of the complainant’s mark do not negate the confusingly similar aspects of the domain names pursuant to Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s <kbhomes.mobi> domain name is confusingly similar to Complainant’s KB HOME mark pursuant to Policy ¶ 4(a)(i).
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 <kbhome.mobi> and <kbhomes.mobi> 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). The Panel finds that Complainant has established a prima facie case. 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”). Although Respondent has not responded to the Complaint, the Panel will nevertheless examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant has alleged that Respondent is not commonly known
by the disputed domain names. The WHOIS
information identifies Respondent as “Alan Nguyen,” and the Panel can find no
other evidence in the record indicating that Respondent is commonly known by
the disputed domain names. Therefore,
the Panel concludes that Respondent is not commonly known by the <kbhome.mobi> and <kbhomes.mobi>
domain names pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA
768859 (Nat. Arb. Forum Sept. 21,
2006) (finding that the respondent was not commonly known by the disputed domain
names because the WHOIS information listed another party as the registrant of
the disputed domain name and there was no other evidence in the record to
suggest that the respondent was commonly known by the domain names in dispute);
see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat.
Arb. Forum
The <kbhome.mobi> and <kbhomes.mobi>
domain names resolve to a webpage stating that it is “under construction.” This message has remained on the website for almost
one year, and Respondent has given no indication that the website will be
developed in the future. Respondent’s
failure to use the <kbhome.mobi> and <kbhomes.mobi>
domain names does not
constitute a bona fide offering of
goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). See Broadcom Corp. v.
Wirth, FA 102713 (Nat. Arb. Forum Jan. 11, 2002) (finding that the
respondent’s use of the disputed domain name to display an “under construction”
page did not constitute a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii)); see also Hewlett-Packard Co. v. Rayne, FA 101465 (Nat. Arb. Forum Dec. 17, 2001) (finding that
the “under construction” page, hosted at the disputed domain name, did not
support a claim of right or legitimate interest under Policy ¶ 4(a)(ii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The <kbhome.mobi> and <kbhomes.mobi>
domain names resolve to a webpage stating that it is “under construction.” Respondent’s failure to use the disputed
domain names for almost one year constitutes bad faith registration and use
pursuant to Policy ¶ 4(a)(iii). See Pirelli & C. S.p.A. v.
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 <kbhome.mobi> and <kbhomes.mobi> domain names be TRANSFERRED from Respondent to Complainant.
Dated: September 10, 2007
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