Kuhns
Bros. Log Homes, Inc. v.
Claim Number: FA1007001334514
Complainant is Kuhns
Bros. Log Homes, Inc. (“Complainant”), represented by Kevin M. Gold, of Rhoads & Sinon LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <kuhnsbrosloghomes.com>, registered with Budgetnames.
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 July 12, 2010.
On July 13, 2010, Budgetnames confirmed by e-mail to the National Arbitration Forum that the <kuhnsbrosloghomes.com> domain name is registered with Budgetnames and that Respondent is the current registrant of the name. Budgetnames has verified that Respondent is bound by the Budgetnames 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 July 14, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@kuhnsbrosloghomes.com by e-mail. Also on July 14, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 11, 2010, 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <kuhnsbrosloghomes.com> domain name is confusingly similar to Complainant’s KUHNS BROS. LOG HOMES INCORPORATED mark.
2. Respondent does not have any rights or legitimate interests in the <kuhnsbrosloghomes.com> domain name.
3. Respondent registered and used the <kuhnsbrosloghomes.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kuhns Bros. Log Homes, Inc., uses its KUHNS BROS. LOG HOMES INCORPORATED to sell its log homes. Complainant holds two trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its KUHNS BROS. LOG HOMES INCORPORATED mark (e.g., Reg. No. 1,641,274 issued April 16, 1991).
Respondent, Texas International Property Associates, registered the <kuhnsbrosloghomes.com> domain name on October 18, 2005. The disputed domain name resolves to a website containing a commercial search engine and hyperlinks that resolve to Complainant’s competitors in the log home industry.
Respondent has been a respondent in multiple, prior UDRP
proceedings in which Respondent was required to transfer the disputed domain
names to the respective complainants. See Outdoor Cap Company, Inc. v.
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.
Prior panels have held that a complainant may establish rights in a mark under Policy ¶ 4(a)(i) by registering a complainant’s mark with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO). Complainant holds two trademark registrations with the USPTO for its KUHNS BROS. LOG HOMES INCORPORATED mark (e.g., Reg. No. 1,641,274 issued April 16, 1991). Therefore, the Panel finds Complainant has established rights in its KUHNS BROS. LOG HOMES INCORPORATED mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <kuhnsbrosloghomes.com> domain name is confusingly similar to Complainant’s KUHNS BROS. LOG HOMES INCORPORATED mark. The disputed domain name removes the period, the spaces separating the terms of the mark, and the term “INCORPORATED” from Complainant’s mark. The disputed domain name further adds the generic top-level domain (“gTLD”) “.com.” Previous panels have determined that a disputed domain name is confusingly similar to a complainant’s mark when the disputed domain name removes a period, spaces, and a term of the mark and adds a gTLD. See Memoirs, Inc. v. Patel, FA 98244 (Nat. Arb. Forum Aug. 28, 2001) (finding the domain name to be confusingly similar where a period was omitted from the I.MEMOIRS mark and the gTLD “.com” was added); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”); see also WestJet Air Ctr., Inc. v. W. Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to the complainant’s mark, where the complainant holds the WEST JET AIR CENTER mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Thus, the Panel concludes that Respondent’s <kuhnsbrosloghomes.com> domain name is confusingly similar to Complainant’s KUHNS BROS. LOG HOMES INCORPORATED mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <kuhnsbrosloghomes.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <kuhnsbrosloghomes.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); 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.”).
Complainant claims that Respondent is not commonly known by the <kuhnsbrosloghomes.com> domain name. Prior panels have held that a respondent is not commonly known by a disputed domain name when the WHOIS information is not similar to the disputed domain name, a complainant alleges that the respondent is not authorized to use a complainant’s mark, and the respondent did not respond to the complaint. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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). In this case, the WHOIS information identifies the domain name registrant as “Texas International Property Associates,” which the Panel determines is not similar to the disputed domain name. Complainant asserts that Respondent is not authorized to use Complainant’s KUHNS BROS. LOG HOMES INCORPORATED mark. Respondent has failed to respond to the Complaint and present any evidence that would suggest that Respondent is commonly known by the <kuhnsbrosloghomes.com> domain name. Based on the evidence in the record and the decisions of prior panels, the Panel concludes that Respondent is not commonly known by the <kuhnsbrosloghomes.com> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant asserts that Respondent’s <kuhnsbrosloghomes.com> domain name resolves to a website that contains a commercial search engine and hyperlinks to Complainant’s competitors in the log homes industry. Complainant alleges that this use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Past panels have held that a respondent’s use of a disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use when a respondent uses a disputed domain name to host a commercial search engine and hyperlinks to a complainant’s competitors. See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). The Panel finds accordingly.
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges Respondent’s use of the <kuhnsbrosloghomes.com>
domain name is a part of a pattern of
bad faith use and registration.
Respondent has been a respondent in numerous UDRP proceedings in
which disputed domain names were transferred from Respondent to the
complainants in those cases. See Outdoor Cap Company, Inc. v.
Complainant contends that Respondent’s <kuhnsbrosloghomes.com> domain name resolves to a website containing a commercial search engine and hyperlinks to Complainant’s competitors in the log homes industry. Previous panels have held that a respondent’s similar use disrupts a complainant’s business because it redirects Internet users from a complainant to a complainant’s competitors. See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors). Based on the evidence in the record and past precedent, the Panel finds Respondent’s use of the <kuhnsbrosloghomes.com> domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iii).
Complainant claims that Respondent receives click-through fees from the commercial search engine and the aforementioned hyperlinks. Prior panels have held that a respondent’s use of a disputed domain name to host hyperlinks and a search engine on a website resolving from a confusingly similar disputed domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). Thus, the Panel determines that Respondent’s use of the <kuhnsbrosloghomes.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel finds 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 <kuhnsbrosloghomes.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 24, 2010
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