Aria Vatankhah v. Aria Vatankhah
Claim Number: FA1406001562682
Complainant is Aria Vatankhah (“Complainant”), California, USA. Respondent is Aria Vatankhah (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ariavatankhah.org>, registered with HiChina Zhicheng Technology Limited.
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 June 3, 2014; the National Arbitration Forum received payment on June 3, 2014.
On June 3, 2014, HiChina Zhicheng Technology Limited confirmed by e-mail to the National Arbitration Forum that the <ariavatankhah.org> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 June 5, 2014, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of June 25, 2014 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@ariavatankhah.org. Also on June 5, 2014, the Chinese language Written Notice of the Complaint, notifying Respondent of the e-mail 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 July 2, 2014, 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 (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.
Language of the Proceedings
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant, Aria Vatankhah, is an attorney and uses his name in advertising his business. Complainant has common law rights in the ARIA VATANKHAH mark. The disputed domain name is identical to Complainant’s ARIA VATANKHAH mark.
Koosha Hashemi impersonated Complainant in registering the<ariavatankhah.org> domain name as Aria Vatankhah. As registrant, the imposter Aria Vatankhah is the Respondent. Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent uses the disputed domain name to impersonate Complainant.
Respondent has registered and is using the disputed domain name in bad faith. Respondent registered the domain name to prevent Complainant from reflecting the mark in a corresponding domain name. Respondent has registered the domain name primarily for the purpose of disrupting the business of Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Aria Vatankhah, is an attorney and uses his name in advertising his business. Complainant has common law rights in the ARIA VATANKHAH mark. The disputed domain name is identical to Complainant’s ARIA VATANKHAH mark.
Respondent registered the <ariavatankhah.org> domain name on January 25, 2012. Respondent uses the disputed domain name to impersonate Complainant.
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."
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.
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.”).
Complainant is an attorney and uses his name, ARIA VATANKHAH, in advertising his business. Complainant has not registered the ARIA VATANKHAH mark with a trademark agency. However, Complainant does not need a valid trademark registration, so long as he can prove common law rights in the mark under Policy ¶ 4(a)(i). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the complainant need not own a valid trademark registration for the ZEE CINEMA mark in order to demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Complainant contends that he has common law rights in the ARIA VATANKHAH mark. Complainant provides three different banner advertisements containing both the ARIA LAW GROUP and the ARIA VATANKHAH mark. Complainant uses his personal name as a marketable commodity, allowing his name or image to be used for a fee for direct commercial purposes in the marketing of his goods and services. Complainant has acquired secondary meaning in the ARIA VATANKHAH mark thereby showing common law rights. See Aria Vatankhah v. Identity Protection Service / Indentity Protect Limited / Koosha Hashemi / Ava ltd, FA 1432522 (Nat. Arb. Forum April 30, 2012) (Complainant established secondary meaning, and, therefore, common law rights under to Policy ¶ 4(a)(i), in the ARIA VATANKHAH mark); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (the panel found common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established). Complainant has established secondary meaning in the ARIA VATANKHAH mark
Respondent’s <ariavatankhah.org> domain name is identical to Complainant’s ARIA VATANKHAH mark under Policy ¶ 4(a)(i). Respondent removes the space in Complainant’s mark and adds the generic top-level domain (“gTLD”) “.org.”
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Since Respondent is impersonating Complainant, Respondent is not commonly known by the <ariavatankhah.org> domain name under Policy ¶ 4(c)(ii).
Respondent uses the <ariavatankhah.org> domain name to impersonate Complainant. Respondent’s disputed domain name leads to a page stating “‘I AM THE BEST LAWYER’ Aria Vatankhah says from Aria Legal.” Complainant argues that Respondent provides an invalid address, telephone number, and email address to tarnish Complainant’s name and reputation. Respondent is not using the <ariavatankhah.org> domain name for a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
Respondent registered the <ariavatankhah.org> domain name to prevent Complainant from reflecting the mark in a corresponding domain name. Complainant says that the true name of Respondent is Koosha Hashemi, and that Respondent registered the <ariavatankhah.com> and <aria-vatankhah.com> domain names in 2012. A panel transferred the <ariavatankhah.com> and <aria-vatankhah.com> domain names to Complainant after finding bad faith use and registration. See Aria Vatankhah v. Identity Protection Service / Identity Protect Limited / Koosha Hashemi / Ava ltd, FA 1432522 (Nat. Arb. Forum April 30, 2012). Prior UDRP proceedings are sufficient evidence of a pattern of bad faith registrations. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007). Accordingly, the Panel finds that Respondent’s registration of the <ariavatankhah.org> domain name is bad faith registration and use under Policy ¶ 4(b)(ii).
Respondent has registered the <ariavatankhah.org> domain name primarily for the purpose of disrupting the business of Complainant. Respondent is using the disputed domain name to pass itself off as Complainant. The Panel finds that Respondent registered and is using the <ariavatankhah.org> domain name in bad faith under Policy ¶ 4(b)(iii).
Respondent uses the <ariavatankhah.org> domain name to impersonate Complainant. Respondent is using Complainant’s identity to redirect Complainant’s customers to another site in an attempt to mislead and divert customers. Therefore, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith according 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).
Similarly, Respondent is passing itself off as Complainant which constitutes bad faith under Policy ¶ 4(b)(iv). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ariavatankhah.org> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 16, 2014
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