Ayrton Senna Empreedimentos
Ltda. v. Nett Corp
Claim Number: FA0710001100619
PARTIES
Complainant is Ayrton Senna Empreedimentos Ltda. (“Complainant”), represented by Cristina
Carvalho, of Arent Fox PLLC,
Respondent is Nett Corp (“Respondent”), represented by Ari
Goldberger, of ESQwire.com Law Firm,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <senna.com> (hereinafter the “Domain Name”),
registered with Moniker Online Services, Inc.
PANEL
The undersigned Panelists
certify that they have acted independently and impartially and to the best of
their knowledge have no known conflict in serving as Panelists in this
proceeding.
Christopher Gibson, Chair;
Joel M. Grossman, Panelist;
Luiz Edgard Montaury Pimenta, Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on October 22, 2007. The National Arbitration Forum (“NAF”)
received a hard copy of the Complaint on October
23, 2007.
On October 25, 2007, Moniker Online Services, Inc. confirmed by
e-mail to NAF that the <senna.com> Domain Name is registered
with Moniker Online Services, Inc. and
that the Respondent is the current registrant of the name. Moniker Online
Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 October 31, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of November 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@senna.com by e-mail.
On November 19, 2007, Respondent filed, with Complainant’s consent, a
request to extend the time to respond to the Complainant. The National Arbitration Forum subsequently
granted this request, extending the date by which a timely Response could be
filed to December 4, 2007.
A timely Response was received and determined to be complete on December 4, 2007.
On December 20, 2007, pursuant to Respondent’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed Christopher Gibson, Chair; Joel M. Grossman
and Luiz Edgard Montaury Pimenta as Panelists.
RELIEF SOUGHT
The Complainant requests that the Domain Name be transferred from the Respondent
to Complainant.
PARTIES’ CONTENTIONS
The parties’ contentions are summarized below.
A. Complainant
The Complainant is a firm that represents the legacy of deceased
Formula One race car driver Ayrton Senna, a three-time Formula One champion
considered by many to be one of the greatest drivers of all time. The Complainant contends that Ayrton Senna’s
name and likeness have become famous in the international racing circuit, and
Complainant has submitted documentary evidence (e.g., New York Times and other
articles) to show that Ayrton Senna has been featured in numerous articles and
newspaper reports. The Complainant
states that Ayrton Senna is often referred to as “Senna” and contends that Complainant
has established common law rights in the mark SENNA through extensive use and
association with Ayrton Senna’s famous name and likeness.
The Complainant asserts that is has established rights in its SENNA, “S
SENNA” and “AYRTON SENNA” marks (the “SENNA Marks”) both through use (creating
common law rights) and through numerous trademark registrations (more than 20) in
both Brazil and the United States. Complainant
has submitted documentary evidence to show that these registrations have been made
over the years with the earliest dating from a registration in
The Complainant states that it uses the SENNA Marks in connection with
the official Ayrton Senna website at <senna.globo.com>. This website “uses the SENNA Marks in
connection with numerous branded products as well as information about Ayrton
Senna’s prolific career.” (Complainant,
at ¶ 3). The Complainant has submitted
documentary evidence to show that it owns the following domain names, all of
which resolve to the official website: <senna.net>; <ayrtonsenna.com>;
<ayrtonsenna.net>; <ayrtonsenna.org>; <sennacar.com>; <sennamachines.com>;
<sennamotors.com>; <sennacelebration.com>; <sennacelebration.net>;
<sennaexperiance.com>; <sennaexperience.net>. The earliest of these domain names was
registered in 1998, with others registered in 2000, 2002, 2004, 2005 and
2006. The Complainant contends that as a
result of its extensive on-line presence, consumers associate SENNA, when used
in a domain name, with the Complainant’s products.
Complainant contends that the Respondent registered the Domain Name <senna.com> on September 27,
1999, “which roughly coincides with Ayrton Senna’s posthumous indoctrination
into the International Motorsports Hall of Fame in the year 2000. The Complainant asserts that the Respondent
registered the Domain Name long after Ayrton Senna had become internationally
famous, and well after (i) Complainant’s first use and registration of the
SENNA Mark, and (ii) the SENNA Marks had become well-known to consumers as
signifying the source of Complainant’s goods and services.
Complainant explains that in September 2001 its lawyers sent letters to
the Respondent expressing concerns about the Respondent’s alleged unauthorized
use of the Domain Name and requesting that the Respondent cease use of the
Domain Name and transfer it to the Complainant.
The Complainant states that the Respondent replied, indicating it had no
intention to trade off of the Complainant’s goodwill and was open to a
settlement offer, although settlement was never reached. The Complainant states that the Respondent’s
bad faith is evidenced by its continued use of the Domain Name even after
receiving the cease and desist notification from the Complainant.
The Complainant asserts that the Respondent is not named or commonly
known as “Senna,” nor does the Respondent own any trademark that is similar or
related to the Complainant’s SENNA Marks or the Domain Name, nor has the
Complainant authorized the Respondent to use the SENNA Marks.
The Complainant contends that the Respondent has not made any bona fide offering of goods or services
in connection with the Domain Name, and thus has no legitimate rights to it. To the contrary, the Respondent merely uses
the Domain Name to re-direct Internet users to third-party websites, including
sites offering information regarding Ayrton Senna and SENNA brand products
without authorization from the Complainant.
Complainant states that the Respondent currently uses the Domain Name in
connection with a site that provides links to third-party websites offering
vitamins and herbal remedies. However,
the Complainant has submitted documentary evidence (i.e., copies of screen
shots) in support of its claim that for a period commencing in 2005 until early
2007, the Respondent’s website associated with the Domain Name had featured
links to Ayrton Senna-related clothing and merchandise (i.e., the links included
“Ayrton Senna Apparel;” “Ayrton Senna Merchandise;” “Ayrton Senna Nacional
Cap;” “NASCAR jobs start here”).
The Complainant claims that the Respondent was clearly aware of the
Ayrton Senna name and the SENNA Marks when it registered the Domain Name, and
did so to improperly profit from the Complainant’s significant goodwill. This actual knowledge of the Complainant’s
rights evidences bad faith registration of the Domain Name. In addition, the Respondent through continued
use of the Domain Name is attempting to attract, for commercial gain, Internet
users by creating a likelihood of confusion.
The Complainant alleges that the Respondent owns over 600 domain names,
many of which infringe on the rights of other legitimate trademark owners. The Complainant has submitted documentary
evidence to show that Respondent has registered domain names incorporating other
well-known third-party names and marks, a sample of which includes:
<yahooo.org>, <jennycraig.org>, <nabisco.org>,
<visacards.org>, <mtv-radio.com>, <nfl-sports.com>,
<dodge-truck.com>, <usa-today.org>, <nationalenquirer.org>,
<stetson.org>, <trump-vodka.org>, <tigerwoods.org>, <citifinancialmortgage.biz>,<elizabethtaylor.org>,
<ghostbusters.org>, <harrypotterbookstore.org>,
<harrypottergames.org>, and <revengeofthesith.org>.
B. Respondent
The Respondent contends that there is no basis for transferring the Domain
Name <senna.com> to the Complainant.
First, while the Respondent takes no position with respect the
enforceability of Complainant’s trademark in this proceeding, the Respondent states that “senna” is a common
word in the dictionary, which refers to a large genus of over 250 flowering
plants, many of which are used for herbal medicinal purposes. The Respondent has submitted copies of pages
from Wikipedia and Dictionary.com to support this contention and argues that
the Complainant does not have exclusive rights to this word. The Respondent asserts it registered the
Domain Name because of the dictionary meaning of “senna,” and not because it
was the last name of Ayrton Senna, the Brazilian race car driver. The Respondent has also presented copies of a
Google search for “senna” (while excluding
“ayrton,” “race,” and “car” to avoid references to Complainant). This search yielded over 2.7 million results containing
the term. The Respondent thus argues
that this common word is subject to over 2.7 million third-party uses on
the Internet entirely unrelated to the late race car driver, Ayrton Senna. The Respondent contends that
Respondent has a legitimate interest in the use of this common word.
The Respondent states that starting around November 2000, it began
hosting the Domain Name with various domain name parking services, which place
pay-per-click (“PPC”) advertisements on web pages associated with domain names
and shared the advertising revenues with the domain name owners. Domain parking companies generally place ads
based on the contextual meaning of the term in the domain name, using a
software program to select the most relevant links. For the first six years that the Domain Name was
registered to Respondent, no ads related to the Complainant’s SENNA Marks
appeared on the various versions of the Respondent’s websites. Instead, the Respondent states that the ads
related to the contextual meaning of “senna.”
The links on the various versions of the site related to herbal and
medicinal related products. The Respondent
submitted documentary evidence to show that links over time included: herbal products, organics vitamins, discount
vitamin, minerals, herbal drink, herbal remedy, herbal medicines, natural herb,
herbal teas, alternative medicine, multi vitamin, herbs, natural herb, herbal
supplement, herbal product, herbal, Chinese herbs, vitamins and herbs, healing
herbs, herbal treatment. The Respondent contends
that because it has used the Domain Name with third-party domain name parking services
to post PPC advertising links, this has established its legitimate interest in
the Domain Name.
The Respondent states that it was not until November 2005 that some
links associated with the Complainant’s goods and services appeared on pages
associated with the Domain Name. The
Respondent explains that these links were the result of Respondent switching to
the domain parking service provided by Sedo.com. The Respondent claims it did not intend for
links relating to the Complainant to appear, and that they appeared only
intermittently. For example, in January
2006, the only link possibly related to Complainant’s goods/services was a link
for “NASCAR jobs.” No links
related to Complainant’s goods and services appeared in 2007. Thus,
the Respondent contends that it is clear that, by far, the predominant use of
the Domain Name has been with respect to “senna,” as this word relates to the
plant or herb. The Respondent
asserts that these few links posted by Sedo.com on Respondent’s web site, which
were related to Complainant’s goods and services, do not make Respondent’s
interest illegitimate.
The Respondent also asserts that there is no evidence supporting an
allegation that Respondent registered the Domain Name in bad faith. Respondent explains that it lawfully
registered the Domain Name on September 27, 1999. The Respondent has submitted the declaration
of Roy Messer, president of the Respondent, in support of its claims that the Respondent
had no knowledge of Complainant or its mark when it registered the Domain Name. Respondent’s use of the Domain Name from 1999
through 2005, with no links associated with Complainant’s goods or services,
provides strong corroboration for this lack of knowledge or intent to associate
the Domain Name with the Complainant.
The few links that appeared between late 2005 and in 2006, since they
were supplied as a result of third-party automated software, do not serve as
basis for inferring knowledge on the part of the Respondent because Respondent
did not intend for the links to appear, and they did not appear until several
years after the Domain Name was registered.
The fact that the Domain Name is composed solely of a common word also
weighs heavily against a finding of bad faith.
Finally, Respondent argues the fact that Complainant waited so long to
initiate this Complaint strongly raises the inference that Complainant truly
did not believe Respondent had been acting in bad faith all these years.
FINDINGS
The Complainant has submitted documentary
evidence to establish that it is the holder of numerous trademark registrations
corresponding to the marks “SENNA,” “S SENNA” and “AYRTON SENNA.”
The Domain Name was registered by the
Respondent on September 27, 1999. The Respondent
is using the Domain Name for a landing page that includes PPC advertisements and
links to third-party web sites.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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 the Complainant has established its rights in the
SENNA Marks, both through their use in commerce giving rise to common law
trademark rights, and through the Complainant’s numerous trademark
registrations. The Respondent has taken “no position” on this
particular point. The Complainant has therefore
satisfied the first required element of the Policy, ¶ 4(a)(i).
The Panel further finds that the Domain Name <senna.com> is identical to
Complainant’s SENNA mark under Policy ¶ 4(a)(i) because
the Domain Name contains the Complainant’s entire mark with the addition of a
generic top-level domain, “.com”. The
Domain Name is also confusingly similar to Complainant’s S SENNA Mark. Previous panels have found that the addition
of a gTLD is irrelevant when conducting a Policy ¶ 4(a)(i)
analysis. See Towmaster, Inc. v. Hale, FA 973506
(Nat. Arb. Forum June 4, 2007) (“The panel finds that Respondent’s
<bigtow.com> domain name is identical to Complainant’s BIG TOW mark
pursuant to Policy ¶ 4(a)(i) because the disputed domain name contains
Complainant’s mark in its entirety and adds the generic top-level domain
(“gTLD”) “.com.”); see also Anheuser –
Busch, Inc. v. Holix Inc., FA
979961 (Nat. Arb. Forum June 19, 2007) (“The Panel accepts the consensus view
of former panels that for the purposes of testing confusing similarity, the generic
top-level domain (“gTLD”), “.com,” is to be ignored.”).
As noted above, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the Domain Name. Once a complainant establishes a prima facie case against a respondent in relation to this element, the burden is on the respondent to provide concrete evidence of its right or legitimate interests under ¶ 4(c) of the Policy. See Do The Hustle, LLC v. Tropic Web, WIPO D2000-0624 (Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
The Policy ¶ 4(c) lists three circumstances that can
demonstrate a registrant’s rights or legitimate interest in a disputed domain
name:
(i)
before
any notice to you of the dispute, your use of, or demonstrable preparations to
use, the domain name or a name corresponding to the domain name in connection
with a bona fide offering of goods or services;
(ii)
you (as
an individual, business or other organization) have been commonly known by the
domain name, even if you have acquired no trademark or service mark rights;
(iii)
you are
making a legitimate noncommercial or fair use of the domain name, without
intent for commercial gain to misleadingly divert consumers or to tarnish the
trademark or service mark.
In respect of
Policy ¶ 4(c)(ii), the
Complainant has asserted that Respondent is not affiliated with or a
licensee of Complainant; is not authorized by Complainant to use any of the
SENNA Marks; and, is not commonly known by the Domain Name. Respondent’s WHOIS information confirms that
the Respondent is known as “Nett Corp.” There
is also no claim by the Respondent that it has been making legitimate
noncommercial or fair use of the Domain Name under ¶ 4(c)(iii). More
pertinent to the issue in this case, the
Complainant contends that the Respondent has not made any bona fide offering of goods or services in connection with the
Domain Name, and thus has no legitimate rights or interests in it. The Complainant argues that the Respondent
has merely used the Domain Name to re-direct Internet users to a landing page
with PPC links to third-party websites, including links offering information
regarding Ayrton Senna and SENNA brand products without authorization from the
Complainant. The Complainant has offered
evidence to show that the Domain Name, during a period between 2005-2006, was
used to provide PPC links corresponding to the Complainant or its SENNA Marks.
The Panel considers
that these circumstances constitute a prima facie case of absence of
rights or legitimate interests on the part of the Respondent, to whom the onus
therefore shifts to establish, by concrete evidence, its rights or legitimate
interests in the Domain Name.
The Respondent contends that its use of the
Domain Name as a common dictionary term in connection with various domain name
parking services, which have placed PPC advertisements on the web pages
associated with the Domain Name, has been sufficient to establish its
legitimate interest in the Domain Name.
Although the Respondent admits that links relating to the Complainant
did appear in 2005-2006, it claims they appeared only intermittently and it did
not intend for this to happen. The
Respondent urges that, by far, the predominant use of the Domain Name has been
with respect to “senna,” as this word relates to the plant or herb.
The Panel has reviewed several recent
decisions that have considered circumstances where the disputed domain name was
used for PPC advertising links. The
Panel in Media General Communications, Inc. v. Rarenames, WebReg, D2006-0964
(WIPO Sept. 23, 2006), found that using domain names for advertising links can
in certain circumstances represent legitimate interests for the purposes of ¶ 4(c)
of the Policy, such as when:
(1) the respondent regularly engages in the
business of using domain names to display advertising links;
(2) the domain name in question is a
“dictionary word” or a generic or descriptive phrase;
(3) the domain name is not identical or
confusingly similar to a famous or distinctive trademark;
(4) the respondent makes good-faith efforts
to avoid registering and using domain names that are identical or confusingly
similar to trademarks held by others; and
(5) there is no evidence that the respondent
had actual knowledge of the complainant’s mark.
In this case, these factors do not all neatly align in favor of the Respondent. See Shangri-La Int’l Hotel Mgmt. Ltd. v. NetIncome Ventures Inc., D2006-1315 (WIPO Feb. 25, 2007) (holding that the circumstances identified in Media Gen. Commc’ns, Inc. v. Rarenames, WebReg, were not present in that case). We can consider each circumstance in turn.
First, there is evidence that the Respondent engages
in the business of using domain names to display PPC advertising links. Neither party disputes this. The Chair, for purposes of confirmation,
checked on several of the Respondent’s other domain names to review web pages
to which they resolved. For example,
when Respondent’s domain name <visacards.org> (corresponding to the
famous VISA trademark) is used, it resolves to a PPC landing page with links
such as “Best Credit Card,” “Best Credit Card Rewards,” “Pre Paid Visa Cards”
and others.
Second, the Respondent asserts that it has used the Domain Name only for the descriptive dictionary meaning for the word “senna.” The Respondent has made reference, for example, to the Wikipedia definition of “senna” in support of its argument. Respondent failed to mention, however, that when the word “senna” is typed into the search function of Wikipedia, the very first reference that occurs in the definition is to “Ayrton Senna (1960–1994), Brazilian F1 driver.” Although the expression “senna” has a dictionary meaning, it also has internationally recognized trademark significance related to the Complainant. See Shangri-La Int’l Hotel Mgmt. Ltd. v. NetIncome Ventures Inc., D2006-1315 (WIPO Feb. 25, 2007) (although the expression ‘Shangri La’ originated in the 1933 novel and has a dictionary meaning, it also has internationally recognized trademark significance which was also referred to in the Wikipedia definition). On this particular point, the Complainant has submitted evidence of its trademark rights and reputation. In response to these submissions, the Respondent has merely stated that “it takes no position with respect to the enforceability of Complainant’s mark in this proceeding.” There is evidence in this case that the Domain Name was used in connection with links that related to the dictionary meaning for “senna” and had nothing to do with the Complainant. However, there is also undisputed evidence that, at least during two years (2005-2006) and after the Respondent had already been put on notice of the Complainant’s trademark, the Domain Name was used in connection with PPC links that related to the Complainant and its SENNA Marks. In addition, despite the Respondent’s statement to the contrary, the Domain Name also resolved to a landing page with a link to “Ayrton Senna Apparel” as of April 2007 (see Internet Archive Wayback Machine for <senna.com>, on which both parties relied). The Panel in mVisible Techs., Inc. v. Navigation Catalyst Sys., Inc., D2007-1141 (WIPO Nov. 30, 2007) considered this particular issue:
These landing pages arguably provide little societal benefit, but the relevant question here is whether they represent a “use . . . in connection with a bona fide offering of goods or services” sufficient to give rise to rights or legitimate interests under paragraph 4(c)(i) of the Policy. If the links on a given landing page are truly based on the generic value of the domain name, such use may be bona fide because there are no trademark rights implicated by the landing page. See, e.g., Landmark Group v. DigiMedia.com, L.P., NAF Claim No. 285459 (PPC landing pages are legitimate if “the domain names have been registered because of their attraction as dictionary words, and not because of their value as trademarks”); see also, National Trust for Historic Preservation v. Barry Preston, WIPO Case No. D2005-0424. If, though, the links are based on the trademark value of the domain names, the trend in UDRP decisions is to recognize that such practices generally do constitute abusive cybersquatting. See, e.g., Champagne Lanson v. Development Services/MailPlanet.com, Inc., WIPO Case No. D2006-0006
(PPC landing page not legitimate where ads are keyed to the trademark value of the domain name); The Knot, Inv. v. In Knot we Trust Ltd, WIPO Case No. D2006-0340 (same); Brink’s Network, Inc. v. Asproductions, WIPO Case No. D2007-0353 (same).Given the mixed
track-record of the Respondent’s use for the Domain Name, the Panel finds that
this particular factor cannot give rise to rights or legitimate interests in the
Domain Name. Nor can the Panel absolve
the Respondent of responsibility when it chooses a domain name parking service that
develops links that relate to the “trademark value” of the Domain Name, as
opposed to its dictionary meaning. In
this sense, this case is distinguishable from Mariah Media Inc. v.
Third, the Panel,
as noted above, has found that the Domain Name is identical to the
Complainant’s trademark. Whether the
Complainant’s trademark qualifies as a famous
or distinctive trademark is debatable.
Of the three panelists in this case, two were quite familiar with
Ayrton Senna, considered to be one of the best Formula One drivers of all time,
while the other was not all familiar with him.
It is certainly possible that Ayrton Senna and the SENNA Marks have a
much more significant reputation in Europe and parts of South America where
Formula One racing has historically been a much more popular sport than it has been
in
Fourth, the Panel
finds that the Respondent has made no
showing that it makes good-faith efforts to avoid registering and using domain
names that are identical or confusingly similar to trademarks held by others. Quite to the contrary, the Complainant has
come forward with un-rebutted evidence to show that the Respondent has
registered many domain names other than the Complainant’s – some of which have
been listed above in this decision – that are identical or confusingly similar
to well-know and highly distinctive trademarks. This pattern is evidence that the Respondent has,
on many occasions, actually targeted well-known trademarks (e.g., Harry Potter,
Ghostbusters, Tiger Woods, etc.) for the domain names it registers. This behavior is inconsistent with the
contractual commitment that each domain name registrant must make at the time
it registers a domain name within the ICANN system: the registered name holder shall
represent that, to the best of the registered name holder's knowledge and
belief, neither the registration of the registered name nor the manner in which
it is directly or indirectly used infringes the legal rights of any third
party. (See ICANN Registrar Accreditation Agreement,
¶ 3.7.7.9).
Fifth, the last factor to consider is whether
the Respondent had actual knowledge of the Complainant’s mark. This is perhaps the most difficult issue for
the Complainant to prove in this case, although Complainant has alleged that
the Respondent must have had this knowledge because the registration of the
Domain Name came well after Complainant’s first use and registration of the
SENNA Marks, and well after the SENNA Marks had become well-known to consumers
as signifying the source of Complainant’s goods and services. The Respondent has asserted that it had no
knowledge of the Complainant or the SENNA Marks when it registered the Domain
Name in 1999. The Panel considers that,
in light of the evidence of Respondent’s intentional registration of domain
names that are identical or confusingly similar to other well-known and
distinctive trademarks, the Panel cannot accord much weight at all to the
Respondent’s self-serving declaration on this point. Instead, the Panel agrees with the decision of
the three member panel in mVisible Techs., Inc. v. Navigation Catalyst
Sys., Inc.:
As for Respondent’s claim that it was not specifically familiar with Complainant’s trademark, even if the Panel would credit that assertion, that assertion is not enough to avoid a finding of bad faith registration. Although there may be no obligation that a domain name registrant conduct trademark or search engine searches to determine whether a domain name may infringe trademark rights, a sophisticated domainer who regularly registers domain names for use as PPC landing pages cannot be willfully blind to whether a particular domain name may violate trademark rights. In this context, a failure to conduct adequate searching may give rise to an inference of knowledge.
Accordingly, Respondent has failed to rebut
Complainant’s showing that Respondent lacks any rights to or legitimate
interests in the domain names at issue, and thus Complainant has satisfied its
burden under the second factor of the Policy.
The analysis above also serves to answer the question of whether or not the Domain Name has been registered and used in bad faith. Based on the principles and facts reviewed above, the Panel concludes that it is reasonable to infer, based upon the circumstantial evidence available, that Respondent, a sophisticated party in the PPC landing page business, was aware of Ayrton Senna and the Complainant’s trademarks. Moreover, the use of the Domain Name for landing pages with links related to the Complainant’s trademarks during 2005-2007, after having been already put on notice of the SENNA Marks by the Complainant, also supports a finding of bad faith. Accordingly, the Panel finds that Respondent registered and used the Domain Name in bad faith.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <senna.com> domain name be TRANSFERRED
from Respondent to Complainant.
|
|
|
|
Christopher Gibson |
|
|
Joel M. Grossman |
Luiz Edgard Montaury Pimenta |
Dated: January 7, 2008
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National
Arbitration Forum