Margo Howard Primary Trust and Margo Howard v. Ann Landers Fans International, LTD.
Claim Number: FA1502001603773
Complainant is Margo Howard Primary Trust and Margo Howard (“Complainant”), represented by Paul S. Sennott of Sennott & Williams, LLP, Massachusetts, USA. Respondent is Ann Landers Fans International, LTD. (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <annlanders.com>, registered with Domain.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 6, 2015; the Forum received payment on February 6, 2015.
On February 6, 2015, Domain.com, LLC confirmed by e-mail to the Forum that the <annlanders.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.com, LLC 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 February 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 26, 2015 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@annlanders.com. Also on February 6, 2015, the 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 5, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant contends that it owns the ANN LANDERS trademark as assignee of the trademark registration with the United States Patent and Trademark Office ("USPTO") (Reg. No. 831, 048, registered June 27, 1967). The ANN LANDERS trademark is used in connection with a syndicated newspaper column. The disputed <annlanders.com> domain name is identical to the ANN LANDERS trademark as the domain name merely removes the space from the two-word mark and affixes the generic top-level domain (“gTLD”) “.com.”
Complainant further alleges that the Respondent has no rights or legitimate interests in the disputed domain name. While purporting to be “Ann Landers Fans International, LTD.” per the WHOIS record, there is no affirmative evidence that Respondent is fact known by that name or even that this alleged group or organization is in operation or in existence. Further showing Respondent’s lack of rights, the disputed domain name resolves to promote advertisements and links to unrelated websites. Respondent is attempting to monetize the resolving page via advertising revenue.
Respondent has engaged in bad faith registration and use. Specifically, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
As Respondent has failed to file a response in this matter, the Panel finds Complainant’s allegations true unless clearly unreasonable. As the assertions herein are not clearly unreasonable, the Panel finds that the disputed domain name is identical to the Complainant’s registered and famous trademark, that the Respondent has no rights or legitimate interests in the domain name and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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.”).
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The National Arbitration Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
The two Complainants in this matter include Margo Howard Primary Trust, a primary trust in the U.S. and Margo Howard, an individual. Complainant claims these two entities jointly own the mark at issue. Notably, the USPTO record shows both parties as assignees. See Compl., at Attached Ex. 2.
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Nat. Arb. Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Nat. Arb. Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Nat. Arb. Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Complaint states that there is a sufficient to establish a nexus or link between the Complainants as the two complainant entities are each assignees of the registered trademark herein. Therefore, the Panel shall treat these two entities as one herein and jointly refer to them as “Complainant.”
The ANN LANDERS trademark is used in connection with a syndicated newspaper column. Complainant claims to own the ANN LANDERS trademark as assignee of the trademark registration with the USPTO (Reg. No. 831, 048, registered June 27, 1967). See Compl., at Attached Ex. 2. Complainant has demonstrated rights in the ANN LANDERS mark for purposes of Policy ¶ 4(a)(i) through assignment of a USTPO recognized trademark. See Remithome Corp v. Pupalla, FA 1124302 (Nat. Arb. Forum Feb. 21, 2008) (finding the complainant held the trademark rights to the federally registered mark REMITHOME, by virtue of an assignment).
Complainant claims that the disputed <annlanders.com> domain name is identical to the ANN LANDERS trademark as the domain name merely removes the space from the two-word mark and affixes the gTLD “.com.” These alterations are inconsequential to the confusingly similar analysis; therefore the <annlanders.com> domain name is effectively identical to the ANN LANDERS trademark pursuant to Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. While purporting to be “Ann Landers Fans International, LTD.” per the WHOIS record, Complainant claims there is no affirmative evidence that such Respondent is fact known by this name or even that this alleged group is in operation. In support of this allegation, Complainant provides the Panel with a Google search showing the name only identified by its connection to the disputed domain name. See Compl., at Attached Ex. 6. As there is insufficient evidence in the record affirming Respondent is in fact commonly known by the disputed domain name, the Panel finds that Complainant has carried its Policy ¶ 4(c)(ii) burden. See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”).
Further showing Respondent’s lack of rights or legitimate interests in or to the domain name, Complainant has shown that the disputed domain name resolves to promotional advertisements and links to unrelated websites. See Compl., at Attached Exs. 4, 5. The featured links include, “The Wall Street Journal,” “Try The New York Times,” and “Nikkei Asian Review,” which relate to Complainant’s own efforts in a syndicated newspaper column. Complainant adds that Respondent is attempting to monetize the resolving page via advertising revenue, as demonstrated by Respondent’s reliance on the SmartName monetization service. See Compl., at Attached Exs. 4, 7. The Respondent’s use of the disputed domain name for commercial advertisements and links relating to Complainant’s field of operation amounts to neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
As such, the Respondent has no rights or legitimate interests in or to the disputed domain name.
Complainant argues that Respondent has engaged in bad faith registration and use of the disputed domain name. Specifically, Complainant claims that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant. The <annlanders.com> domain name resolves to feature monetized links and advertisements to newspaper-related sites. See Compl., at Attached Exs. 4, 5, 7. Prior panels have found bad faith under comparable circumstances. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Accordingly, the Respondent’s efforts to monetize misdirected traffic through the <annlanders.com> domain name evinces Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <annlanders.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: March 8, 2015
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