FasTracKids International Ltd. v. Young Nah
Claim Number: FA0512000610159
Complainant is FasTracKids International Ltd. (“Complainant”), represented by Sean Weldon, 6900 E. Belleview Avenue, Suite 100, Greenwood Village, CO 80111, USA. Respondent is Young Nah (“Respondent”), 366 Pohang, Korea.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <fasttrackkids.com>, registered with Hangang Systems, Inc. d/b/a Doregi.Com.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 15, 2005; the National Arbitration Forum received a hard copy of the Complaint on January 19, 2006. The Complaint was submitted in both Korean and English.
On January 27, 2006, Hangang Systems, Inc. d/b/a Doregi.Com confirmed by e-mail to the National Arbitration Forum that the <fasttrackkids.com> domain name is registered with Hangang Systems, Inc. d/b/a Doregi.Com and that Respondent is the current registrant of the name. Hangang Systems, Inc. d/b/a Doregi.Com has verified that Respondent is bound by the Hangang Systems, Inc. d/b/a Doregi.Com 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 January 27, 2006, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 16, 2006 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@fasttrackkids.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 21, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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." 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <fasttrackkids.com> domain name is confusingly similar to Complainant’s FASTRACKIDS mark.
2. Respondent does not have any rights or legitimate interests in the <fasttrackkids.com> domain name.
3. Respondent registered and used the <fasttrackkids.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, FasTracKids International Ltd., provides educational services and instruction for children. Complainant offers courses, computer software, and distribution of course materials under its FASTRACKIDS mark.
Complainant registered the FASTRACKIDS mark with the United States Patent and Trademark Office (“USPTO”) on August 10, 1999 (U.S. Reg. No. 2,268,362). Complainant has also registered the FASTRACKIDS mark in Korea. Complainant registered the <fastrackids.com> domain name on January 7, 1998.
Respondent registered the <fasttrackkids.com>
domain name on November 8, 2003.
Respondent is using the disputed domain name to operate a web directory
displaying links to fitness- and education-related topics, including
Complainant’s direct competitors.
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. 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 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.
Complainant has established rights in the FASTRACKIDS mark
through registration of the mark with the USPTO. See Vivendi Universal Games v. XBNetVentures Inc., FA
198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark
registrations establish Complainant's rights in the BLIZZARD mark.”); see
also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”).
Respondent’s <fasttrackkids.com> domain name is confusingly similar to Complainant’s FASTRACKIDS mark pursuant to Policy ¶ 4(a)(i), because it misspells the mark by adding the letters “t” and “k,” the proper spelling of the words in Complainant’s mark. Therefore, consumers believing that Complainant’s mark contains the entire words “fast,” “track,” and “kids” are misdirected to Respondent’s website. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Am. Airlines, Inc. v. Data Art Corp., FA 94908 (Nat. Arb. Forum July 11, 2000) (finding <americanairline.com> "effectively identical and certainly confusingly similar" to the complainant's AMERICAN AIRLINES registered marks); see also Victoria's Secret v. Internet Inv. Firm Trust, FA 94344 (Nat. Arb. Forum May 9, 2000) (finding the domain name <victoriasecret.com> to be confusingly similar to the complainant’s trademark, VICTORIA’S SECRET).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <fasttrackkids.com> domain name. Complainant has the initial burden of proof in establishing that Respondent has no rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <fasttrackkids.com>
domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO
June 20, 2000) (“By not submitting a response, Respondent has failed to invoke
any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any
rights or legitimate interests in the domain name”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on
Respondent's failure to respond, it is presumed that Respondent lacks all rights
and legitimate interests in the disputed domain name.”). However, the Panel will now examine the
record to determine if Respondent has rights or legitimate interests under
Policy ¶ 4(c).
There is no evidence in the record suggesting that
Respondent is commonly known by the <fasttrackkids.com> domain
name. Therefore, Respondent has not
established rights or legitimate interests in the <fasttrackkids.com> domain
name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not
have rights in a domain name when the respondent is not known by the mark); see
also Wells Fargo & Co. v. Onlyne Corp.
Services11, Inc., FA 198969 (Nat. Arb.
Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed
domain [name], one can infer that Respondent, Onlyne Corporate Services11, is
not commonly known by the name ‘welsfargo’ in any derivation.”).
Moreover, Respondent is using the <fasttrackkids.com> domain name, which is confusingly similar to Complainant’s FASTRACKIDS mark, to operate a website displaying links to fitness- and education-related topics, including some of Complainant’s direct competitors. Such use of the disputed domain name for commercial gain does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <fasttrackkids.com> domain name, which is confusingly similar to Complainant’s FASTRACKIDS mark, to divert Internet users seeking Complainant’s services to a web directory displaying links to fitness- and education-related topics, some of which resolve to Complainant’s direct competitors. The Panel infers that Respondent receives click-through fees for diverting consumers to these websites. Therefore, Respondent is taking advantage of the likelihood of confusion between Respondent’s domain name and Complainant’s mark and capitalizing on the goodwill associated with the mark. The Panel finds that such use constitutes evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fasttrackkids.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 7, 2006
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