National Arbitration Forum

DECISION

Gallup, Inc. v. ArmBeat

Claim Number: FA0507000510425

PARTIES

Complainant is Gallup, Inc. (“Complainant”), represented by Lisa B. Kiichler, of Gallup, Inc., 1001 Gallup Drive, Omaha, NE 68102. Respondent is ArmBeat (“Respondent”), 33 Alias Street, New York, NY 23222.

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <mediagallup.com>, <gallupmediahouse.com>, <gallupmediagroup.com>, <itgallup.com>, <webgallup.com>, and <netgallup.com>, registered with Stargate Holdings Corp.

PANEL

Each of the undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no known conflict of interests in serving as a Panelist in this proceeding: Hon. Charles K. McCotter, Jr. (Ret.), and Messrs. Jeffrey M. Samuels and Terry F. Peppard, chair.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 7, 2005; the National Arbitration Forum received a hard copy of the Complaint on July 8, 2005.

On July 11, 2005, Stargate Holdings Corp. confirmed by e-mail to the National Arbitration Forum that the domain names <mediagallup.com>, <gallupmediahouse.com>, <gallupmediagroup.com>, <itgallup.com>, <webgallup.com>, and <netgallup.com> are registered with Stargate Holdings Corp. and that the Respondent is the current registrant of the name. Stargate Holdings Corp. has verified that Respondent is bound by the Stargate Holdings Corp. 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 July 12, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 1, 2005 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@mediagallup.com, postmaster@gallupmediahouse.com, postmaster@gallupmediagroup.com, postmaster@itgallup.com, postmaster@webgallup.com, and postmaster@netgallup.com by e-mail.

Having received no Response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

On August 15, 2005, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Hon. Charles K. McCotter, Jr. (Ret.), and Messrs. Jeffrey M. Samuels and Terry F. Peppard, chair, as Panelists.

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." 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.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant contends, among other things, that:

Complainant is the largest, oldest and best-known opinion polling service in the world.

Complainant has used GALLUP as one of its trademarks for seventy years.

Complainant has registered the mark GALLUP in 103 countries, including the United States.

Cumulative business conducted by Complainant worldwide under the GALLUP mark exceeds one billion USD.

Cumulative advertising and promotion expenditures undertaken by Complainant worldwide in support of the GALLUP mark exceed fifty million USD.

Complainant owns and operates a web site, first registered in 1993, associated with the domain name <gallup.com>, as well as numerous other domain names incorporating the GALLUP mark.

Respondent is not a licensee of Complainant, nor has Respondent ever been authorized by Complainant to use Complainant’s GALLUP mark or any mark including GALLUP.

Respondent is not commonly known by the GALLUP name.

Respondent’s domain names <gallupmediahouse.com>, <gallupmediagroup.com>, <itgallup.com>, <webgallup.com> and <netgallup.com> all resolve to a web site at <webgallup.com>, but the web site located at <webgallup.com> is not active, and there are no other pages behind the homepage.

Respondent has thus failed to make use of these domain names, either for commercial or non-commercial purposes.

Respondent trades on the GALLOP name by using the web site at <mediagallup.com> to offer market research studies to assess television channels in the Arab world.

This use of the GALLUP mark is sure to create confusion in the minds of Internet users, and does not constitute a bona fide offering of goods and services.

When challenged as to its use of the GALLUP mark for the disputed domain names, Respondent attempted to sell those names to Complainant.

B. Respondent

Respondent has made no response to the Complaint filed by Complainant.

C. Additional Submissions

No Additional Submissions have been filed.

FINDINGS

a. the domain names registered by Respondent are confusingly similar to a mark in which Complainant has rights;

b. Respondent has no rights or legitimate interests in respect of the subject domain names; and

c. the disputed domain names have been registered and are being used in bad faith.

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

i. the domain name registered by the Respondent is identical or confusingly

similar to a trademark or service mark in which the Complainant has rights;

ii. the Respondent has no rights or legitimate interests in respect of the domain name; and

iii. the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Our analysis of the instant Complaint begins with an inquiry into whether Complainant has rights in the mark which grounds the Complaint. In this regard, Complainant alleges both that its GALLUP mark has been registered for many years with the pertinent national authorities, including the United States Patent and Trademark Office, and that it has invested substantial capital in marketing its goods and services under the banner of that mark. Complainant argues, by implication, that such investment has made its mark famous and distinctive, so that Complainant would enjoy protection for its mark at common law even if it were not so registered.

Respondent does not dispute these allegations. Moreover, registration of a mark, without more, creates a presumption of rights in that mark. America Online, Inc. v. Thomas P. Culver Enterprises, D2001-0564 (WIPO Jun. 18, 2001). The Panel therefore finds that Complainant has rights in the mark in issue within the meaning of Policy ¶4(a)(i).

The next question to be examined under Policy ¶4(a)(i) is whether, given that Complainant has rights in its mark, the disputed domain names are either identical or confusingly similar to that mark. As to this question, each of the disputed domain names incorporates Complainant’s GALLUP mark in its entirety, and merely adds to it a generic word or phrase. Each also adds the generic top-level domain name “.com.”

It is well established that the addition of a generic word or phrase to a famous mark does not avoid a finding of confusing similarity. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001); see also General Elec. Co. v. Forddirect.com, Inc., D2000-0394 (WIPO June 22, 2000).

The same is true of the addition of the required generic top-level domain name. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum, May 27, 2003).

Accordingly, and inasmuch as Respondent does not dispute Complainant’s allegations on this issue, the Panel finds that each of the disputed domain names is both substantively identical and confusingly similar to Complainant’s GALLUP mark as alleged.

Rights or Legitimate Interests

Respondent has failed to respond to the Complaint herein. A Respondent who thus defaults has failed to identify for the edification of the Panel any circumstance which could demonstrate rights or interests Respondent might have in the disputed domain names. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000); see also Geocities v. Geocities.com, D2000-0326 (WIPO June 19, 2000).

However, Respondent’s default does not necessarily establish that it lacks rights or legitimate interests in the subject domain names sufficient for purposes of Policy ¶4(a)(ii). Therefore, Complainant is still required to proffer allegations which, if true, would support a finding that Respondent has no such rights or legitimate interests. See Lush LTD v. Lush Environs, FA 96217 (Nat. Arb. Forum, Jan. 13, 2001); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum, Jan. 16, 2003). We turn, then, to Complainant’s allegations under this heading.

In support of its contention that Respondent has no rights or legitimate interests in the subject domain names, Complainant alleges, among other things, that:

§ Respondent is not a licensee of Complainant, nor has Respondent ever been authorized by Complainant to use Complainant’s GALLUP mark or any mark including GALLUP.

§ Respondent is not commonly known by the GALLUP name.

§ Respondent’s domain names <gallupmediahouse.com>, <itgallup.com>, <gallupmediagroup.com>, <webgallup.com> and <netgallup.com> all resolve to a web site at <webgallup.com>, but the web site located at <webgallup.com> is not active, and there are no other pages behind the homepage.

§ Respondent has thus failed to make use of these domain names, either for commercial or non-commercial purposes.

§ Respondent trades on the GALLUP name and mark by using the web site at <mediagallup.com> to offer market research studies to assess television channels in the Arab world.

§ This use of the GALLUP mark is sure to create confusion in the minds of Internet users, and does not constitute a bona fide offering of goods and services.

In the circumstances here presented, the Panel accepts as true these unrefuted allegations tending to show that Respondent has no rights or legitimate interests in the disputed domain names. In particular, the Panel believes that Respondent’s failure to develop an active web site for the five domain names <gallupmediahouse.com>, <itgallup.com>, <gallupmediagroup.com>, <webgallup.com> and <netgallup.com> is determinative on this issue as to those names. Ziegenfelder Co. v. VMH Enterprises, Inc., D2000-0039 (WIPO Mar. 14, 2000). Similarly, as to the domain name <mediagallup.com>, the use of this name, which is confusingly similar to Complainant’s mark, to foster commercial activity that competes with Complainant’s research studies business is not a bona fide offering of goods or services within the meaning of Policy ¶4(c)(i). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum, June 23, 2003); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum, Jan. 11, 2002).

For all of these reasons, Complainant prevails under Policy ¶4(a)(ii).

Registration and Use in Bad Faith

In order to succeed under this heading, Complainant must establish that Respondent has both registered and is using the disputed domain names in bad faith.

It has often been said that a domain name holder who registers the name after a competing mark owner has registered the mark with the pertinent national authorities must have done so with either actual or constructive knowledge of the mark holder’s rights, and that a domain name registration made in such circumstances is done in bad faith under Policy ¶4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum, Apr. 17, 2000).

On the facts before us, the Panel reaches the same conclusion in this proceeding. This conclusion is bolstered by the fact that Respondent evidently chose consciously to register the domain name <mediagallup.com> in order to trade on public familiarity with Complainant’s mark in launching Respondent’s competing business.

As to bad faith use of the subject domain names, Respondent’s failure over an extended period of time, and without explanation, to make active use of the domain names <gallupmediahouse.com>, <itgallup.com>, <webgallup.com>, <netgallup.com> and <gallupmediagroup.com> is evidence in that direction. Clerical Med. Inv. Grp. Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000). So also is Respondent’s use of the domain name <mediagallup.com> to direct Internet traffic to a web site offering research services competitive with those of Complainant. S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum, July 18, 2000).

Additional evidence of Respondent’s bad faith derives from its apparent effort, in the particular circumstances here present, to sell the disputed domain names to Complainant once this dispute arose, as well as from Respondent’s failure to respond to the allegations of the Complaint.

The Panel is thus compelled to conclude that Respondent has both registered and is using the subject domain names in bad faith under Policy ¶4(a)(iii).

DECISION

Having found that all three elements required under the ICANN Policy have been established by Complainant, the Panel concludes that the relief requested shall be, and it is hereby, GRANTED.

Accordingly, it is Ordered that the <mediagallup.com>, <gallupmediahouse.com>, <gallupmediagroup.com>, <itgallup.com>, <webgallup.com>, and <netgallup.com> domain names be TRANSFERRED from Respondent to Complainant.

Terry F. Peppard, Chair

Charles K. McCotter, Jr. Jeffrey M. Samuels