Cydcor, Inc. v. Ben Brown
Claim Number: FA1007001335041
Complainant is Cydcor,
Inc. (“Complainant”), represented by Kevin
J.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cydcor.info>, registered with eNom, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 13, 2010.
On July 14, 2010, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <cydcor.info> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 July 19, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 9, 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@cydcor.info. Also on July 19, 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 17, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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" 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 <cydcor.info> domain name is identical to Complainant’s CYDCOR mark.
2. Respondent does not have any rights or legitimate interests in the <cydcor.info> domain name.
3. Respondent registered and used the <cydcor.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cydcor, Inc., provides international business consultation services. Complainant owns multiple trademark registrations for the CYDCOR mark with the United States Patent and Trademark Office (“USPTO”):
Reg. No. 2,866,235 issued July 27, 2004;
Reg. No. 2,896,691 issued October 26, 2004; and
Reg. No. 3,641,010 issued June 16, 2009.
Respondent, Ben Brown, registered the <cydcor.info> domain name on December 2, 2009. The disputed domain name resolves to a website hosting Respondent’s blog, which deals primarily with job opportunities and also includes a few links that are presumably pay-per-click links.
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 owns multiple trademark registrations for the CYDCOR mark with the USPTO:
Reg. No. 2,866,235 issued July 27, 2004;
Reg. No. 2,896,691 issued October 26, 2004; and
Reg. No. 3,641,010 issued June 16, 2009.
The Panel finds that these USPTO trademark registrations are conclusive evidence of Complainant’s rights in the CYDCOR mark under Policy ¶ 4(a)(i). 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 argues that Respondent’s <cydcor.info> domain name is identical to Complainant’s CYDCOR mark as the only difference between the disputed domain name and the mark is the addition of the generic top-level domain (“gTLD”) “.info.” The Panel finds that appending a gTLD does not prevent the disputed domain name from being deemed identical to Complainant’s mark according to Policy ¶ 4(a)(i) as gTLDs are required elements of domain names. See Microsoft Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007) (“the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i).“); see also PepsiCo, Inc. v. Shah, FA 103934 (Nat. Arb. Forum Mar. 4, 2002) (finding the <pepsico.info> domain name identical to the complainant’s PEPSICO mark). The Panel therefore finds that Respondent’s <cydcor.info> domain name is identical to Complainant’s CYDCOR mark according to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i)
has been satisfied.
Policy ¶ 4(a)(ii) requires that Complainant present a prima facie case against Respondent’s rights and legitimate interests in the disputed domain name before the burden can be transferred to Respondent to demonstrate such rights and legitimate interests. In this proceeding, the Panel finds that Complainant put forth such a case, but Respondent failed to respond. As a result, the Panel finds that Respondent has not met his burden and has presented no evidence showing rights and legitimate interests in the disputed domain name according to Policy ¶ 4(a)(ii). See CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the respondent’s failure to produce requested documentation supports a finding for the complainant); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). In the interest of making a full determination, however, the Panel elects to consider all the evidence presented in light of the Policy ¶ 4(c) factors.
Complainant asserts that Respondent is not commonly known by the <cydcor.info> domain name and has no association or affiliation with Complainant or the CYDCOR mark. The WHOIS information for the disputed domain name also does not support any relation between Respondent and the disputed domain name as it lists the registrant as “Ben Brown.” The Panel finds that Respondent consequently lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii) as he is not commonly known by the disputed domain name. See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names 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 Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Complainant contends that Respondent uses the <cydcor.info> domain name to attract Internet
users seeking Complainant, create the false impression of an association with
Complainant, and redirect the Internet users to Respondent’s blog focusing on
employment opportunities and business strategies. Complainant alleges that Respondent also uses
the resolving website as a platform for selling advertising space, including
presumed pay-per-click links to third-party sites. The Panel finds that Respondent’s use of
Complainant’s mark in the disputed domain name to divert Internet users to a
web page not affiliated with Complainant and for Respondent’s benefit is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw.
Free Cmty. Access, FA 180704
(Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s
demonstrated intent to divert Internet users seeking Complainant’s website to a
website of Respondent and for Respondent’s benefit is not a bona fide offering
of goods or services under Policy ¶ 4(c)(i)
and it is not a legitimate noncommercial or fair use under Policy ¶
4(c)(iii).”); see also ALPITOUR S.p.A. v. balata inc, FA
888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly
similar <viaggidea.com> domain name to operate a website that features links to
various commercial websites from which Respondent presumably receives referral
fees….is neither a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy
¶ 4(c)(iii).”).
The Panel finds Policy ¶
4(a)(ii) has been satisfied.
Complainant alleges that Respondent maintains the <cydcor.info> domain name in order to compete with Complainant in the business consulting services market by promoting Respondent’s own business model based on what states he learned as a former employee of Complainant. Complainant argues that Respondent states that the blog will help Internet users “take that knowledge, that system of sales, and replicate it.” The Panel finds that Respondent’s efforts to compete with Complainant and disrupt Complainant’s business through use of Complainant’s mark indicate bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); see also Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion).
Complainant argues that Respondent profits from his
registration and use of the <cydcor.info>
domain name because Respondent sells advertising space on the resolving website
and includes what are presumably pay-per-click links to third-party
websites. Complainant asserts that
Respondent’s appropriation of Complainant’s mark in the disputed domain name is
intended to create the false impression of an association between Complainant
and Respondent and attract Internet users seeking Complainant or even
Complainant’s employees. The Panel finds
that Respondent’s attempt to attract, mislead and profit from Internet traffic
seeking Complainant reveals bad faith registration and use pursuant to Policy ¶
4(b)(iv). See Allianz
of Am. Corp. v. Bond, FA
680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use
under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users
searching for the complainant to its own website and likely profiting); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum
Dec. 28, 2005) (“the Panel finds the respondent is appropriating the
complainant’s mark in a confusingly similar domain name for commercial gain,
which is evidence of bad faith registration and use pursuant to Policy
¶4(b)(iv).”); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration
and use of a domain name that incorporates another's mark with the intent to
deceive Internet users in regard to the source or affiliation of the domain
name is evidence of bad faith.”).
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 <cydcor.info> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 20, 2010
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