Sheryl Crow c/o Provident Financial
Management v. LOVEARTH.net
Claim
Number: FA0310000203208
Complainant is Sheryl Crow c/o Provident Financial
Management, Los Angeles, CA (“Complainant”) represented by Steven M. Weinberg, of Greenberg Traurig, LLP., 2375 E. Camelback Road, Phoenix, AZ
90404. Respondent is LOVEARTH.net, 5683 Midnight Pass Road,
Suite 106, Siesta Key, FL 34242 (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <sheryl-crow.com>, registered with Network
Solutions, Inc.
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.
Honorable
Paul A. Dorf (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on October 16, 2003; the Forum received a hard copy of the
Complaint on October 20, 2003.
On
October 21, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that
the domain name <sheryl-crow.com> is registered with Network
Solutions, Inc. and that Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
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
October 22, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of November 11, 2003 by which Respondent could file a Response to
the Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@sheryl-crow.com by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
November 16, 2003, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed Honorable Paul A. Dorf
(Ret.) 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."
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 makes the following assertions:
1. Respondent’s <sheryl-crow.com>
domain name is confusingly similar to Complainant’s SHERYL CROW mark.
2. Respondent does not have any rights or
legitimate interests in the <sheryl-crow.com> domain name.
3. Respondent registered and used the <sheryl-crow.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant has
registered the SHERYL CROW mark with the United States Patent and Trademark
Office (“USPTO”) (Reg. Nos. 2328375 and 2313643) for entertainment and musical
sound recordings. Complainant has used
its mark, which is well-known, famous, and valuable, continuously since
1986. Complainant also has registered
domain names that incorporate the SHERYL CROW mark, such as
<sherylcrow.com> and <sherylcrowworld.com>.
Respondent
registered the domain name <sheryl-crow.com> on October 1,
1998. Respondent uses the domain name
to link Internet users to <celebrity-websites.com>, which then links to
other celebrity sites, as well as an unauthorized webpage of Complainant.
Respondent has
registered numerous celebrity names and links them in a similar fashion. Respondent profits from these registrations
by requesting payment from the appropriate celebrity personality for the domain
name. Respondent requested that Complainant purchase the domain name for $2000.
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.
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.
Respondent has
rights in the SHERYL CROW mark through registration with the USPTO and
continuous use since 1986.
The disputed
domain name <sheryl-crow.com> is confusingly similar to
Complainant’s SHERYL CROW mark, pursuant to Policy ¶ 4(a)(i), because the
former contains Complainant’s mark in its entirety and merely adds a
hyphen. See Chernow Comm. Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (“the
use or absence of punctuation marks, such as hyphens, does not alter the fact
that a name is identical to a mark"); see also Easyjet Airline Co. Ltd.
v. Harding, D2000-0398 (WIPO June 22, 2000) (finding it obvious that the
domain name <easy-jet.net> was virtually identical to
Complainant's EASYJET mark and therefore that they are confusingly similar).
Therefore,
Complainant has established Policy ¶ 4(a)(i).
Respondent has
not asserted any rights or legitimate interests in the domain name. Therefore, the Panel is free to draw
reasonable inferences from Complainant’s allegations, without the benefit of a
Response. See Vertical Solutions
Mgmt., Inc. v. Webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31,
2000) (holding that Respondent’s failure to respond allows all reasonable
inferences of fact in the allegations of Complainant to be deemed true); see
also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that, where Complainant has asserted that Respondent has no rights or
legitimate interests with respect to the domain name, it is incumbent on
Respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”).
It is neither a
bona fide offerings of goods or services, nor an example of a legitimate
noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder
of a domain name, confusingly similar to a registered mark, attempts to profit
by passing itself off as Complainant or by attempting to sell the domain
name. See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb.
Forum Feb. 27, 2001) (Respondent’s commercial use of the domain name to confuse
and divert Internet traffic is not a legitimate use of the domain name); see
also N. Coast Med., Inc. v. Allegro
Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use
where Respondent used the domain name to divert Internet users to its competing
website); see also Toronto-Dominion Bank
v. Karpachev, 188 F.Supp.2d 110,
114 (D. Mass. 2002) (because Respondent's sole
purpose in selecting the domain names was to cause confusion with Complainant's
website and marks, its use of the names was not in connection with the offering
of goods or services or any other fair use); see also MSNBC Cable, LLC v. Tysys.com,
D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in
the famous MSNBC mark where Respondent attempted to profit using Complainant’s
mark by redirecting Internet traffic to its own website); see also State Farm Mut. Auto. Ins. Co. v. LaFaive,
FA 95407 (Nat. Arb. Forum Sept. 27, 2000) (“unauthorized providing of
information and services under a mark owned by a third party cannot be said to
be the bona fide offering of goods or services”).
There is no
evidence that Respondent has ever been commonly known by the disputed domain
name pursuant to Policy ¶ 4(c)(ii).
Additionally, the WHOIS registration information fails to imply that
Respondent is commonly known by the name.
See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (finding that “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan.
23, 2001) (Respondent does not have rights in a domain name when Respondent is
not known by the mark).
Therefore,
Complainant has established Policy ¶ 4(a)(ii).
By requesting
consideration of $2000, in excess of any out-of-pocket costs incurred by
Respondent, in exchange for the transfer of the disputed domain name
registration, Respondent has evidenced bad faith registration and use pursuant
to Policy ¶ 4(b)(i). See Tech. Prop., Inc v. Hussain, FA 95411
(Nat. Arb. Forum Sept. 14, 2000) (finding bad faith where Respondent offered
the domain names for sale for $2,000); see also World Wrestling Fed’n Entmt., Inc. v.
Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the
domain name in bad faith because it offered to sell the domain name for
valuable consideration in excess of any out-of-pocket costs); see also Dynojet Research, Inc. v. Norman,
AF-0316 (eResolution Sept. 26, 2000) (finding that Respondent demonstrated bad
faith when it requested monetary compensation beyond out-of-pocket costs in
exchange for the registered domain name).
Additionally,
Respondent engages in a pattern of acquiring domain names reflecting celebrity
marks and personalities, and then requesting payment for the transfer of the
domain name registrations. This
activity prevents the legitimate owners of the famous marks from reflecting
their marks in the corresponding domain names, which also evidences bad faith
registration and use pursuant to Policy ¶ 4(b)(ii). See Armstrong
Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000)
(finding that Respondent violated Policy ¶ 4(b)(ii) by registering multiple
domain names that infringe upon others’ famous and registered trademarks); see
also Encyclopaedia Britannica Inc. v.
Shedon.com, D2000-0753 (Sept. 6, 2000) (finding bad faith where Respondent
engaged in the practice of registering domain names containing the trademarks
of others).
Therefore,
Complainant has established Policy ¶ 4(a)(iii).
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <sheryl-crow.com> domain name be TRANSFERRED
from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated:
November 28, 2003
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