National Spiritual Assembly of the Bahá’ís of the United States v. Moniker Privacy Services
Claim Number: FA1510001644005
Complainant is National Spiritual Assembly of the Bahá’ís of the United States (“Complainant”), represented by Genevieve E. Charlton of BRINKS GILSON & LIONE, Illinois, USA. Respondent is Moniker Privacy Services (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bahaidate.com>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 26, 2015; the Forum received payment on October 26, 2015.
On October 26, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bahaidate.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 October 28, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 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@bahaidate.com. Also on October 28, 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 November 20, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, National Spiritual Assembly of the Bahá’ís of the United States (“NSA”) is the U.S. national representative of a hierarchical administrative order that organizes and guides over 6 million adherents to the Bahá’í Faith worldwide. NSA is authorized by the Universal House of Justice as the sole administrative authority of the Bahá’í Faith in the United States and NSA is responsible for supervising, stimulating and unifying the activities of over 1,000 Local Spiritual Assemblies (“LSA”) and over 1,500 local groups in the United States, including additional regional entities and various other Bahá’í institutions in the United States.
NSA owns, operates, and is headquartered in the vicinity of the Bahá’í House of Worship in Wilmette, Illinois, one of the most well-known and outstanding architectural and religious edifices in the world, pictured below.
Complainant is well known and instantly recognized as the administrative authority of the Bahá’í community in the United States, including by the federal and state governments. All members of the Bahá’í community are registered on membership rolls maintained by the National Spiritual Assembly and Local Spiritual Assembly with responsibility for the area in which the member lives. Enrollment is used to verify one’s membership for purposes of voting in Bahá’í elections, contributing to Bahá’í funds and serving on Bahá’í national, regional and local assemblies, among other things. To become a member in the United States, a person signs a declaration card and, subject to the approval of the Complainant, is added to the membership roll maintained at the LSA and NSA offices. All Bahá’í institutions and activities are supported by the voluntary contributions of enrolled Bahá’ís. No outside funds are solicited and only contributions from enrolled Bahá’ís are accepted.
In many jurisdictions, including the United States, members are issued identification cards. These cards serve many functions, including to verify one’s membership in the U.S. Bahá’í community for purposes of voting in Bahá’í elections, contributing to Bahá’í funds and serving on Bahá’í national, regional and local assemblies. The United States government and immigration authorities rely in part on Complainant’s ability to verify the authenticity of membership in the worldwide Bahá’í Faith through reference to the membership rolls, for purposes of granting or denying asylum to Iranian Bahá’ís (who are offered asylum in the United States to escape religious persecution). Indeed, there have been cases of aliens seeking asylum status by falsely claiming membership in the Bahá’í Faith, in order to avoid deportation. Because NSA maintains membership records, it is able to quickly and accurately verify membership in the Bahá’í Faith when questioned by the United States government.
Importantly, in the context of this domain name issue, elevating the status of minority groups that have experienced discrimination and the complete equality of women and men in all aspects of human society are central to Complainant’s mission.
Complainant, for over 100 years, has been and is currently extensively engaged in the marketing and selling of various goods and services in interstate commerce. Complainant sells, for example, religious services, books, pamphlets and related religious publications, and in connection therewith has extensively used the trademarks and/or service marks BAHÁ’Í, BAHÁ’Í & Design, NATIONAL SPIRITUAL ASSEMBLY OF THE BAHÁ’ÍS OF THE UNITED STATES, BAHÁ’Í RADIO and Design, and BAHÁ’Í PUBLISHING (the “BAHÁ’Í
Marks”). In addition, Complainant makes extensive use of the BAHÁ’Í Marks through its websites, such as <bahai.us> and its various social media pages.
The BAHÁ’Í Marks are strong and distinctive. Complainant has invested a substantial amount of time and resources promoting its goods and services under the Marks. As a result of Complainant’s substantial investment of time and resources and its continuous and exclusive use, the BAHÁ’Í Marks have generated an immeasurable amount of goodwill and have come to be closely associated with Complainant’s goods and services and its upstanding and virtuous ideals. In short, the BAHÁ’Í Marks represent an asset of incalculable value to Complainant.
Complainant, through its predecessors in interest, began using certain of the BAHÁ’Í Marks in connection with religious services and publications over one hundred years ago in U.S. commerce. For example, the BAHÁ’Í mark in U.S. Registration No. 556,004 was first used as early as 1900 and has been registered on the Principal Register since 1952. As a result, the mark is strong and highly distinctive, and it identifies Registrant as the source of the recited goods sold under the mark.
Complainant is the owner of the following trademark registrations for its BAHÁ’Í Marks, which are valid and subsisting on the Principal Register of the United States Patent and Trademark Office:
Mark Reg. No. First Use Reg. Date
BAHÁ’Í 556,004 1900 March 11, 1952
BAHÁ’Í and Design 806,393 May 5, 1965 March 29, 1966
NATIONAL SPIRITUAL ASSEMBLY OF THE BAHÁ’ÍS OF THE UNITED STATES 794,080 April 30, 1948 August 10, 1965
BAHÁ’Í PUBLISHING 2,693,683 December 22, 1999 July 25, 2000
BAHÁ’Í RADIO and Design 2,910,385 February 10, 2003 December 14, 2004
Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (holding that the complainant’s trademark registrations with the USPTO had established rights in the BLOOMBERG mark).
Pursuant to Section 15 of the Lanham Act, 15 U.S.C. § 1065, Complainant’s right to use these marks has become incontestable. As a result, said registrations are conclusive evidence of (1) the validity of the registered marks, (2) Complainant’s ownership of the marks and (3) Complainant’s exclusive right to use the marks in commerce.
Complainant has successfully enforced the BAHÁ’Í Marks in U.S. District Court and in UDRP proceedings. For example, in Nat’l Spiritual Assembly of the Bahá'ís of the United States of Am. Under the Hereditary Guardianship Inc. v. Nat’l Spiritual Assembly of the Bahá'ís of the United States of Am. Inc. (“NSA”), No. 64-C-1878, 150 USPQ 346 (N.D. Ill. Jun. 28, 1966)). Registration No. 556,004 was specifically referenced and declared valid and enforceable in the court’s decision. NSA, 150 USPQ at 354. The court held the public had come to recognize the designation BAHÁ’Í as identifying NSA and the BAHÁ’Í FAITH as administered by NSA, and no other, and enjoined a subsequent user from confusing uses of the mark.
Complainant has also had success enforcing its BAHÁ’Í Marks in UDRP proceedings. In 2001, Complainant filed a challenge under the Uniform Domain Name Dispute Resolution Policy for transfer of the domain name <bahaiwomen.com>. The panel recognized Complainant’s rights and held that the domain name should be transferred to Complainant. The panel deciding the case remarked in finding confusion that:
“The Panel accepts that the mark is associated with the Complainant and the Complainant’s faith. While the Complainant’s trademark is registered only in the United States, the Bahá’í Faith is now accepted by more than 5 million people from many nations and the mark is well known in many countries. Because of the
highly unusual nature of the mark, it is improbable that the Respondent would have conceived the domain name independently.”1
1 The BAHÁ’Í mark is now registered in connection with publications and other goods and/or services covering at least 40 countries.
National Spiritual Assembly of the Bahá’ís v. Buy This Name, Case No. D2001-1302 (WIPO December 18, 2001).
FACTUAL AND LEGAL GROUNDS
[a.] The Disputed Domain Name Is Confusingly Similar To Complainant’s BAHÁ’Í Marks. UDRP Rule 3(b)(ix)(1); UDRP Policy ¶4(a)(i).
The disputed domain name, <bahaidate.com>, is confusingly similar to Complainant’s registered BAHÁ’Í Marks. For the purposes of the domain name dispute resolution process, a low threshold of proof is all that is required to meet the test in Policy ¶4(a)(i). Yahoo! Inc. v James Fato d/b/a 458 Online, Case No. 286410 (Nat. Arb. Forum Jul. 26, 2004). “All that Complainant need demonstrate is that its mark is included in the domain name.” Id.; see also Avaya Inc. v. Jomar Technologies / Jomar Technologies, Inc., FA 1554827 (Nat. Arb. Forum May 15, 2014) (ending the Identical and/or Confusingly Similar analysis after finding that the domain included Complainant’s identical mark). Here, the disputed domain name fully incorporates Complainant’s famous, registered BAHÁ’Í Marks.
The disputed domain name only differs from Complainant’s BAHÁ’Í Marks in that it adds the generic word “date” to the end of the domain name. The addition of “date” fails to distinguish the domain name from Complainant’s mark. Caesars License Company, LLC v. Ezlease Propertys / Keith Crawford / This Domain is for sale / Dale, Case No. 1578969 (Nat. Arb. Forum October 22, 2014)(finding the term “date” insufficient to distinguish the disputed domain name, therefore finding the domain <highrollerdate.com> confusingly similar to complainant’s HIGH ROLLER trademark).
As noted above, Complainant secured the transfer of the domain name <bahaiwomen.com> in a highly similar situation. National Spiritual Assembly of the Bahá’ís v. Buy This Name, Case No. D2001-1302 (WIPO December 18, 2001). There, the Panel found the domain name <bahaiwomen.com> to be confusingly similar to Complainant’s BAHÁ’Í Mark because “the addition of the generic term ‘women’ did not operate as a distinguishing feature” and “by far the dominant and memorable part of the domain name is the Complainant’s trademark BAHÁ’Í”. Id. Likewise, here, Complainant’s registered BAHÁ’Í mark is the dominant portion of <bahaidate.com> and the generic term “date” is insufficient to distinguish the domain.
Moreover, it is well-established that the addition of a gTLD, such as the .com here, fails to play a role in distinguishing a domain name from a trademark. See Abbott Labs v. Whois Svc. c/o Belize Domain WHOIS Svc., Case. No. 1254682 (Nat. Arb. Forum May 14, 2009) (“the addition of a gTLD is irrelevant indistinguishing a disputed domain name from a registered mark”).
Accordingly, Paragraph 4(a)(i) of the UDRP, requiring that the domain name at issue be “identical or confusingly similar to a trademark or service mark in which the complainant has rights” is satisfied.
[b.] Respondent Has No Rights Or Legitimate Interests In The Disputed Domain Name. UDRP Rule 3(b)(ix)(2); UDRP Policy ¶4(a)(ii).
Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services; Respondent is not making a noncommercial fair use of the disputed domain name; and Respondent has never been known as or referred to as BAHÁ’Í or BAHÁ’Í DATE or any variation thereof. As a result, Respondent does not have a legitimate interest in the disputed domain name under Paragraphs 4(c)(i)-(iii) of the UDRP.
[1.] Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under UDRP Policy ¶4(c)(i) and is not making noncommercial fair use of the disputed domain name.
UDRP Policy ¶4(c)(iii).
Respondent is not using the disputed domain in connection with a bona fide offering of goods or services or making noncommercial fair use of the disputed domain name. The disputed domain name currently resolves to a website that displays adult-related content including, but not limited to, links to pornographic commercial websites such as meetrealguys.com and realitykings.com , online dating tips, and pornstar news featuring provocative sexual images. For representative samples of the webpages currently displayed at bahaidate.com and samples of the pornographic commercial websites it links to, please see Annex H. In addition, as recently as May 2014, the domain resolved to a pornographic website featuring sexually explicit materials and links to pornographic commercial websites.
Respondent uses this adult-oriented content (and previously used sexually explicit pornographic photos) on the website located at the domain name bahaidate.com to publicize links to additional websites commercially displaying pornography. Accordingly, Respondent is using the disputed domain name intentionally to attract, for commercial gain, Internet users to its pornographic website by creating a likelihood of confusion with Complainant’s famous BAHÁ’Í Marks as to the source or endorsement of Respondent’s website and the goods or services offered at that website. Previous panels have found that using a domain name that resolves to a website displaying adult-oriented material constitutes neither a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Univision Communications Inc. v. Zlatan Filipovic, FA 1611659 (Nat. Arb. Forum April 29, 2015) (finding that Respondent is not using the disputed domain in connection with a bona fide offering of goods or service or a legitimate noncommercial or fair use because the disputed domain name resolves to an adult-oriented website); Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that prior use of the <targetstore.net> domain name to redirect Internet users to an adult- oriented website did not equate to a bona fide offering of goods or services under Policy ¶4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶4(c)(iii)).
In light of the above, UDRP Policy ¶4(c)(i) and UDRP Policy ¶4(c)(iii) requiring that Registrant has no right or legitimate interest in the disputed domain is satisfied.
[2.] Respondent has never been known or referred to as “BAHÁ’Í Date” or any variation thereof. (UDRP Policy ¶4(c)(ii))
Complainant is not aware of Respondent or Respondent’s website and is not affiliated with Respondent in any way. Respondent is not licensed or otherwise authorized by Complainant to use Complainant’s BAHÁ’Í Marks.
Moreover, the WHOIS information for the disputed domain name lists “Registration Private” as the “Registrant Name.” This fact alone is evidence that the Respondent has no rights or legitimate interests in the domain name. See Save On Energy, LLC v. Joseph Crono, FA 1496896 (Nat. Arb. Forum June 17, 2013) (stating “[t]he fact that Respondent registered the domain name using a privacy service to conceal his identity is by itself evidence that Respondent has no rights or legitimate interests.”). As stated in Virgin Enterprises Limited v. Domain Administrator / Fundacion Private Whois:
Respondent has registered the disputed domain name using a privacy service. Respondent cannot acquire rights to a disputed domain name in a commercial context in this manner. The nominee holding bare title is not making a use of the disputed domain. The beneficial owner (whose identity is not disclosed) cannot acquire any rights because its identity is not disclosed.
Virgin Enterprises Limited, FA 1460195 (Nat. Arb. Forum September 25, 2012).
Accordingly, Respondent does not have a legitimate interest in the disputed domain name under UDRP Policy ¶4(c)(ii).
[c.] Respondent Registered and Is Using the Disputed Domain Name in Bad Faith. UDRP Rule 3(b)(ix)(3); UDRP Policy ¶4(a)(iii).
As discussed above, the disputed domain name resolves to a website featuring adult- oriented content. In addition, as recently as May 2014, the domain resolved to a pornographic website featuring sexually explicit materials and links to pornographic commercial websites. Respondent’s use of the domain name in connection with adult oriented- content, and recent use as a pornographic website with sexually explicit content is evidence of Respondent’s registration and use of the disputed domain name in bad faith. Previous Panels have held that the registration of a domain name incorporating a trademark and use of that domain name for a pornographic website amounts to registration and use in bad faith. See, e.g., National Spiritual Assembly of the Bahá’ís v. Buy This Name, Case No. D2001-1302 (WIPO December 18, 2001)(Finding that Complainant met its burden of proving bad faith because Respondent has used the domain name in connection with a pornographic site); America Online, Inc. v. East Coast Exotics, Case No. D2001-0661 (“Registration of a domain name incorporating another’s mark and use of that domain name for a pornographic website has been widely held to be registration and use in bad faith”); America Online, Inc. v. Viper, Case No. D2000-1198 (“The fact that the site operated by Respondent is pornographic in nature has been found in prior decisions to be evidence of bad faith”).
Moreover, the adult-oriented content on Respondent’s website degrades and humiliates women, in stark contrast to the moral and virtuous teachings of Complainant, which seeks to promote the equality of men and women. Such use tarnishes the BAHÁ’Í Marks and Complainant’s reputation, which is further evidence of Respondent’s bad faith. America Online, Inc. v. Viper - WIPO Case No. D2000-1198 (“The use of AOL as part of a domain name offering pornographic products and services certainly ‘tarnishes’ Complainant’s existing marks, which is also evidence of bad faith.”).
Finally, at the time Respondent registered the disputed domain name, Complainant’s BAHÁ’Í Marks had been used and registered for decades and in some cases used for over a century and were exceedingly strong and famous. Respondent registered the domain name with full knowledge of Complainant’s rights, intending to create an association with Complainant. It is inconceivable that Respondent could replicate such a unique name independently without any knowledge of Complainant. Accordingly, Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is evidence of bad faith registration with regard to the Policy ¶4(a)(iii). Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”).
Based on the foregoing, Respondent registered and is using the disputed domain name in bad faith under UDRP Rule 3(b)(ix)(3) and UDRP Policy ¶4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant must prove three elements to obtain an order cancelling or transferring a domain name:
(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 claims rights in the BAHÁ’Í mark through its registration with the United States Patent and trademark Office (“USPTO”) (Reg. No. 556,004, registered on March 11, 1952). Registration with the USPTO (or any other governmental trademark authority) is sufficient to demonstrate rights in a mark under Policy ¶4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶4(a)(i)). Complainant has adequately proven its rights in the BAHÁ’Í mark under Policy ¶4(a)(i).
Complainant claims Respondent’s <bahaidate.com> domain name is confusingly similar to Complainant’s BAHÁ’Í mark because it contains the entire mark, and is altered by only the word “date” and the gTLD “.com.” The word “date” is generic, meaning it does not adequately distinguish the domain name and the mark. This Panel could imagine there is an audience who might well want to date people of the BAHÁ’Í faith. Domain name syntax requires a TLD, whether it is a gTLD or a ccTLD. Therefore, the TLD must be ignored for the purposes of a Policy ¶4(a)(i) analysis. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Respondent’s <bahaidate.com> domain name is confusingly similar to Complainant’s BAHÁ’Í mark pursuant to Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent is not commonly known by the <bahaidate.com> domain name. The WHOIS information lists “Moniker Privacy Services” as Registrant. Respondent has failed to provide any evidence to indicate being commonly known by the domain name. Complainant has not authorized Respondent to use the BAHÁ’Í mark. Based upon such a record, Panels routinely find a respondent is not commonly known by a domain name under Policy ¶4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). This Panel agrees. Respondent is not commonly known by the <bahaidate.com> domain name under Policy ¶4(c)(ii).
Complainant claims Respondent fails to use the <bahaidate.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website contains adult-related content, including links to commercial pornographic websites, online dating, and news related to porn actors and the porn industry. Hosting adult oriented material on a confusingly similar domain shows a lack of bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c) (iii). See Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to an adult-oriented website did not equate to a bona fide offering of goods or services under Policy ¶4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶4(c)(iii)). Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) and Policy ¶4(c)(iii).
Respondent registered this domain name using a privacy service. This means bare title to the domain name is held by a nominee (who has no real interest in the domain name). The beneficial owner is undisclosed. Respondent has done nothing to publicly associate itself with the domain name, so Respondent has not acquired any rights to the domain name.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant does not make any arguments with respect to Respondent’s bad faith that are specifically enumerated under Policy ¶4(b). However, the Policy is considered illustrative, rather than exhaustive. 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.”).
Complainant claims Respondent uses the <bahaidate.com> domain name in bad faith because the resolving website contains adult-material, including links to commercial pornographic websites, online dating news, and news related to porn actors and the porn industry. This Panel would agree. Bad faith registration and use under Policy ¶4(b) can be proven by hosting adult-material. See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (finding that the respondent registered the <holidayinnakron.com> domain name and linked it to an adult-oriented website. The panel stated, “[W]hatever the motivation of Respondent, the diversion of the domain names to [an adult-oriented] site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith”). Respondent registered and uses the domain in bad faith under Policy ¶4(b).
Complainant claims Respondent registered the <bahaidate.com> domain name with actual knowledge of Complainant’s rights in the BAHÁ’Í mark. Complainant registered its mark in 1952 and it is distinctive. It seems clear Respondent is trying to exploit the goodwill behind Complainant’s mark to promote its “dating website.” It seems inconceivable Respondent didn’t know about Complainant’s mark. When respondents have actual knowledge of a complainant’s rights in a mark, the registration and use of a confusingly similar domain name is done in bad faith under Policy ¶4(a)(iii). See Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16, 2002) (finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights). Respondent had actual knowledge of Complainant’s rights in the BAHÁ’Í mark at the time of registration. Therefore, Respondent registered and uses the <bahaidate.com> domain in bad faith under Policy ¶4(a)(iii).
Finally, Respondent registered the domain using a privacy service. Such a registration raises the rebuttable presumption of bad faith registration and use in the commercial context. Respondent has done nothing to rebut that presumption. On these grounds alone, this Panel is willing to find bad faith registration and use.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <bahaidate.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, December 1, 2015
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