Ashley Furniture Industries, Inc. v. Web Services Pty c/o Aditya Roshni
Claim Number: FA0803001172981
Complainant is Ashley Furniture Industries, Inc. (“Complainant”), represented by Terrence
J. Madden, of Kostner, Koslo & Brovold LLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ashleyfurnitureindustries.com>, registered with Answerable.com (I) Pvt. Ltd.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On March 31, 2008, Answerable.com (I) Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <ashleyfurnitureindustries.com> domain name is registered with Answerable.com (I) Pvt. Ltd. and that Respondent is the current registrant of the name. Answerable.com (I) Pvt. Ltd. has verified that Respondent is bound by the Answerable.com (I) Pvt. Ltd. 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 3, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 23, 2008 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@ashleyfurnitureindustries.com 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 <ashleyfurnitureindustries.com> domain name is confusingly similar to Complainant’s A ASHLEY FURNITURE INDUSTRIES mark.
2. Respondent does not have any rights or legitimate interests in the <ashleyfurnitureindustries.com> domain name.
3. Respondent registered and used the <ashleyfurnitureindustries.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ashley Furniture
Industries, Inc., is in the business of selling home and retail furniture. Complainant registered its A ASHLEY
FURNITURE INDUSTRIES mark with the United States Patent and Trademark Office
(“USPTO”) on
Respondent, Web Services Pty
c/o Aditya Roshni, registered the <ashleyfurnitureindustries.com>
domain name on
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’s registration of the A
ASHLEY FURNITURE INDUSTRIES mark with the
USPTO establishes sufficient rights in the mark under
Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP
Servs., FA 221171 (Nat. Arb. Forum
The Panel finds that Respondent’s <ashleyfurnitureindustries.com> domain name is confusingly
similar to Complainant’s A ASHLEY FURNITURE INDUSTRIES mark under Policy ¶ 4(a)(i) as it contains Complainant’s dominant part of
the mark with only the omission of the first word “A.” When evaluating if the disputed domain name
is confusingly similar, the addition of a generic top-level domain “.com” to
Complainant’s mark is irrelevant.
Therefore, Respondent’s disputed domain name is confusingly similar
under Policy ¶ 4(a)(i). See Elder Mfg.
Co., Inc. v. Recker, FA 98414 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant initially must establish that Respondent lacks
rights or legitimate interests with respect to the disputed domain name. However, once Complainant makes a prima facie case, the burden of proof
shifts, and Respondent must prove that it has rights or legitimate interests in
the <ashleyfurnitureindustries.com> domain
name. Failure of Respondent to respond
furthers the presumption that Respondent lacks rights and legitimate interests
with respect to the disputed domain name under Policy ¶ 4(c). The Panel finds that Complainant has met its
burden of proof, but chooses to examine all of the evidence before making a
final determination with respect to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
The Panel finds that Respondent is using the <ashleyfurnitureindustries.com>
domain name to display hyperlinks to a parked page with a list of third-party
websites, some of which are in direct competition with Complainant. The Panel infers that Respondent is using the
disputed domain name to earn click-through fees, which is not 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 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).
Based on Respondent’s WHOIS information and lack of any
other evidence in the record, the Panel also finds that Respondent is not
commonly known by the <ashleyfurnitureindustries.com>
domain name under Policy ¶ 4(c)(ii). See Am. W.
Airlines, Inc. v. Paik, FA 206396 (Nat.
Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Based on the undisputed evidence presented by Complainant,
the Panel finds that Respondent receives click-through fees for the hyperlinks
displayed on the website that resolves from the disputed domain name. The Panel also finds that Respondent’s <ashleyfurnitureindustries.com>
domain name is capable of creating a likelihood of confusion as to
Complainant’s sponsorship and affiliation with the disputed domain name and
corresponding website. The Panel finds
Respondent’s registration and use of the disputed domain name for commercial
benefit constitutes bad faith under Policy ¶ 4(b)(iv). See MathForum.com,
LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith
under Policy ¶ 4(b)(iv) where the respondent
registered a domain name confusingly similar to the complainant’s mark and the
domain name was used to host a commercial website that offered similar services
offered by the complainant under its mark); 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 Respondent is
using the <ashleyfurnitureindustries.com>
domain name to redirect Internet users to a website
that contains third-party hyperlinks, some of which are in direct competition
with Complainant. Such use constitutes a
disruption of Complainant’s business and qualifies as bad faith registration
and use under Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO
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 <ashleyfurnitureindustries.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: May 12, 2008
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