Frank Risalvato v. Ryan Kovach
Claim Number: FA1008001338369
Complainant is Frank
Risalvato (“Complainant”), represented by Steven L.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain name at issue is <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net>, registered with GoDaddy.com, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 1, 2010.
On August 3, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 August 9, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 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@frankrisalvato.com, postmaster@frankrisalvato.org, postmaster@frankrisalvato.info, and postmaster@frankrisalvato.net by e-mail. Also on August 9, 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 September 9, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names are identical to Complainant’s FRANK RISALVATO mark.
2. Respondent does not have any rights or legitimate interests in the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names.
3. Respondent registered and used the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Frank Risalvato, provides executive search services and recruiting and has been in operation since 1987. Complainant offers these services under the FRANK RISALVATO mark.
Respondent, Ryan Kovach, registered the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names on May 28, 2010. The disputed domain names all resolve to a single website containing false and derogatory statements about Complainant and Complainant’s business practices.
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 claims that Respondent’s <frankrisalvato.com>, <frankrisalvato.org>,
<frankrisalvato.info>, and <frankrisalvato.net>
domain names are identical to Complainant’s FRANK RISALVATO mark. The disputed domain names include
Complainant’s entire mark, simply remove the space separating the terms of the
mark, and add one of the generic top-level domains (“gTLD”) “.com,” “.org,”
“.info,” o “.net.” The Panel finds that
even after the removal of a space and the addition of a gTLD the disputed
domain names remain identical to Complainant’s mark under Policy ¶ 4(a)(i). See Fed’n
of Gay Games, Inc. v. Hodgson,
D2000-0432 (WIPO June 28, 2000) (finding that the domain name
<gaygames.com> is identical to the complainant's registered trademark GAY
GAMES); see also
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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 disputed domain names. However, the Panel will examine the record to determine whether Respondent has established any rights or legitimate interests under Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO 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”).
There is no evidence in the record, suggesting that Respondent is commonly known by the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names. Complainant asserts that the Respondent does not own a trademark or service mark reflecting Complainant’s FRANK RISALVATO mark or any of the disputed domain names. Complainant claims that Respondent has no license or agreement with Complainant authorizing Respondent to use the FRANK RISALVATO mark, and the WHOIS information identifies the registrant of the disputed domain names as “Ryan Kovach.” Thus, Respondent is not commonly known by the disputed domain names and has not established rights or legitimate interests in the <robhamic.com> domain name pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also 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).
Complainant alleges that Respondent uses the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names to resolve to a single website that contains false and derogatory statements about Complainant and Complainant’s business practices. The Panel finds that this use of the disputed domain names that are identical to Complainant’s mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (holding that the respondent’s showing that it “has a right to free speech and a legitimate interest in criticizing the activities of organizations like the Complainant . . . is a very different thing from having a right or legitimate interest in respect of [a domain name that is identical to Complainant’s mark]”); see also Monty & Pat Roberts, Inc. v. Keith, D2000-0299 (WIPO June 9, 2000) (“[T]he Panel does not dispute Respondent’s right to establish and maintain a website critical of Complainant . . . However, the panel does not consider that this gives Respondent the right to identify itself as Complainant.”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that it may consider the totality of the
circumstances when conducting a Policy ¶ 4(a)(iii)
analysis, and that it is not limited to the enumerated factors in Policy ¶
4(b). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he
examples [of bad faith] in Paragraph 4(b) are intended to be illustrative,
rather than exclusive.”).
Respondent’s <frankrisalvato.com>, <frankrisalvato.org>,
<frankrisalvato.info>, and <frankrisalvato.net>
domain names resolve to a website that features false and derogatory statements
about Complainant and Complainant’s business practices. The Panel finds that Respondent’s use of the
disputed domain names constitutes bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).
See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,
D2001-0376 (WIPO May 14, 2001) (stating that although the respondent’s
complaint website did not compete with the complainant or earn commercial gain,
the respondent’s appropriation of the complainant’s trademark with a view to
cause “damage and disruption to [Complainant] cannot be right, still less where
the use of the Domain Name will trick internet users intending to visit the
trademark owner’s site into visiting the registrant’s site” in holding that the
disputed domain name was registered in bad faith); see also Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7,
2000) (finding that the respondent registered the domain names
<kwasizabantu.com>, <kwasizabantu.org>, and
<kwasizabantu.net> in bad faith where the respondent published negative
comments regarding the complainant’s organization on the confusingly similar
website).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <frankrisalvato.com>, <frankrisalvato.org>, <frankrisalvato.info>, and <frankrisalvato.net> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 13, 2010
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