Campus Management Corp. v. Sudha d/b/a Nichetechies Consultants
Claim Number: FA1009001346206
Complainant is Campus Management Corp. ("Complainant"), represented by Judith L. Grubner, Florida, USA. Respondent is Sudha d/b/a Nichetechies Consultants ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <talismaconsultants.com>, registered with DIRECTI INTERNET SOLUTIONS PVT. LTD. d/b/a PUBLICDOMAINREGISTRY.COM.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 14, 2010; the National Arbitration Forum received payment on September 14, 2010.
On September 17, 2010, DIRECTI INTERNET SOLUTIONS PVT. LTD. d/b/a PUBLICDOMAINREGISTRY.COM confirmed by e-mail to the National Arbitration Forum that the <talismaconsultants.com> domain name is registered with DIRECTI INTERNET SOLUTIONS PVT. LTD. d/b/a PUBLICDOMAINREGISTRY.COM and that Respondent is the current registrant of the name. DIRECTI INTERNET SOLUTIONS PVT. LTD. d/b/a PUBLICDOMAINREGISTRY.COM has verified that Respondent is bound by the DIRECTI INTERNET SOLUTIONS PVT. LTD. d/b/a PUBLICDOMAINREGISTRY.COM registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 17, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 7, 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@talismaconsultants.com. Also on September 17, 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 October 25, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <talismaconsultants.com> domain name is confusingly similar to Complainant’s TALISMA mark.
2. Respondent does not have any rights or legitimate interests in the <talismaconsultants.com> domain name.
3. Respondent registered and used the <talismaconsultants.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Campus Management Corp., is a technical computer support and computer relationship management firm that offers outsourced services to others as well as computer software technology for the management of electronic computer interaction and direct marketing promotions. Complainant owns several trademark registrations, through assignment by Talisma Corp., worldwide for its TALISMA mark including those with the United States Patent and Trademark Office ("USPTO") (Reg. No. 2,514,178 issued December 4, 2001) and with the Indian Office of Controller General of Patents (“IOCGP”) (Reg. No. 984,439 issued January 17, 2001).
Respondent, Sudha d/b/a Nichetechies Consultants, registered the <talismaconsultants.com> domain name on May 22, 2004. Respondent’s disputed domain name resolves to Respondent’s competing website.
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 has established rights in the TALISMA mark under Policy ¶ 4(a)(i) through its multiple trademark registrations with the USPTO (Reg. No. 2,514,178 issued December 4, 2001) and IOCGP (Reg. No. 984,439 issued January 17, 2001). 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 Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).
Complainant contends that Respondent’s <talismaconsultants.com> domain name is confusingly similar to Complainant’s TALISMA mark. Complainant argues that the disputed domain name contains its entire mark while adding the descriptive term “consultants” and the generic top-level domain (“gTLD”) “.com.” The Panel agrees and finds that Respondent’s disputed domain name is confusingly similar to Complainant’s TALISMA mark under Policy ¶ 4(a)(i). See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has contended that Respondent does not have rights and legitimate interests in the <talismaconsultants.com> domain name. 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). The Panel finds Complainant has made a sufficient 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 disputed domain name. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). 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).
Complainant asserts that Respondent is not commonly known by the <talismaconsultants.com> domain name. Complainant alleges that Respondent is not authorized or licensed to use Complainant’s TALISMA mark. The WHOIS information identifies the domain name registrant as “Sudha d/b/a Nichetechies Consultants,” which Complainant contends is not similar to Respondent’s <talismaconsultants.com> domain name. Respondent has failed to respond to these allegations and has failed to present evidence that would suggest that Respondent is commonly known by the disputed domain name. The Panel concludes that Respondent is not commonly known by the <talismaconsultants.com> domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant argues that Respondent is using the disputed domain name to resolve to Respondent’s competing business. Complainant contends that Respondent’s use of the disputed domain name to direct Internet users to a direct competitor is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel finds that Respondent’s use of the disputed domain name to resolve to Respondent’s competing website is not 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). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent’s disputed domain name redirects Internet users to Respondent’s competing computer consultation business. Complainant argues that Respondent’s purpose of registering the disputed domain name was to disrupt Complainant’s competitive business. The Panel finds that such use invariably disrupts Complainant’s business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”).
Complainant goes on to argue that Respondent is intentionally attempting to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website and goods offered through such site. Complainant contends that by the time Internet users arrive at Respondent’s website they have already viewed Respondent’s competing offerings without knowledge of who the owner of the website is. The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to Respondent’s competing website, presumably for financial gain, is evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
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 <talismaconsultants.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 25, 2010
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