California Fragrance Company, Inc. v. ActiveIdeas.com c/o Web Admin
Claim Number: FA0604000684967
Complainant is California Fragrance Company, Inc. (“Complainant”), 171 East Second Street, Huntington Station, NY 11746. Respondent is ActiveIdeas.com c/o Web Admin (“Respondent”), 11 White Oak Lane, Quaker Hill, CT 06375.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <aromaremedy.com>, registered with Enom, Inc.
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 April 20, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 24, 2006.
On April 20, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <aromaremedy.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 April 27, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 17, 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@aromaremedy.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 23, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <aromaremedy.com> domain name is identical to Complainant’s AROMAREMEDY mark.
2. Respondent does not have any rights or legitimate interests in the <aromaremedy.com> domain name.
3. Respondent registered and used the <aromaremedy.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns a trademark registration for the AROMAREMEDY mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,461,033 issued June 19, 2001). Complainant uses the AROMAREMEDY mark in connection with skin, bath and beauty care products, including lotions, body gels, perfumes and colognes.
Respondent registered the <aromaremedy.com> domain name on June 11, 2005, and has so far not used the domain name for any purpose. Complainant alleges that it had registered the dispute domain name at one point, but inadvertently let it expire.
Complainant claims that it tried numerous times to contact Respondent through various means of communication, including letters, phone calls and e-mails, and Respondent never responded.
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 demonstrated its rights in the AROMAREMEDY
mark by registering the mark with the USPTO.
Complainant’s allegations that it previously held the registration for
the <aromaremedy.com> domain name provides further evidence of its
rights in the AROMAREMEDY mark under Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685
(Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established
rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks
with the USPTO); see also Miller Brewing Co. v. The Miller Family, FA
104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had
established rights to the MILLER TIME mark through its federal trademark
registrations); see also Marty
Taylor Homes, Inc. v. JNPR Mgmt., FA 366170 (Nat. Arb. Forum Jan. 5, 2005)
(finding that the complainant’s prior use of the disputed domain name, which
was identical to the asserted trademark, was evidence of its rights in the
mark).
Respondent’s <aromaremedy.com> domain name is identical to Complainant’s AROMAREMEDY mark because it contains the entire registered mark and merely adds the generic top-level domain (“gTLD”) “.com.” The mere addition of a gTLD does not negate a finding that the disputed domain name is identical to Complainant’s registered mark pursuant to Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v. Ohno, FA 511463 (Nat. Arb. Forum Aug. 23, 2005) (holding that the <reebok.net> domain name was identical to the complainant’s REEBOK mark because it fully incorporates the mark and merely adds a generic top-level domain); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).
Complainant alleges that Respondent lacks rights and legitimate interests in the <aromaremedy.com> domain name. Complainant must first make a prima facie case in support of its allegations, and then the burden shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <aromaremedy.com>
domain name. See Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that the complainant’s allegations are true unless clearly
contradicted by the evidence); see also Eroski, So. Coop. v. Getdomains
Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003) (“It can be inferred that
by defaulting Respondent showed nothing else but an absolute lack of interest
on the domain name.”). However, the Panel will now examine the record to determine
if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent has registered the domain name under the name “ActiveIdeas.com
c/o Web Admin,” and there is no other evidence in the record suggesting that
Respondent is commonly known by the <aromaremedy.com> domain name. Thus, Respondent has not established rights
or legitimate interests in the <aromaremedy.com> domain name
pursuant to Policy ¶ 4(c)(ii). See RMO,
Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting
Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known
by the domain name prior to registration of the domain name to prevail"); see
also Great S. Wood Preserving, Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000)
(finding that the respondent was not commonly known by the domain name
<greatsouthernwood.com> where the respondent linked the domain name to
<bestoftheweb.com>).
Moreover, Respondent has
not used the <aromaremedy.com> domain name since registering it on
June 11, 2005 and has not provided any evidence of demonstrable preparations to
use the disputed domain name.
Therefore, Respondent is not using the disputed domain name for a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use of the disputed domain name pursuant to
Policy ¶ 4(c)(iii). See Bloomberg L.P. v. SC Media Services and
Information SRL, FA 296583 (Nat.
Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating
Complainant’s mark and is not using the <bloomberg.ro> domain name in
connection with an active website. The
Panel finds that the passive holding of a domain name that is identical to
Complainant’s mark is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair
use of the domain name pursuant to Policy
¶ 4(c)(iii).”); see also Hewlett-Packard
Co. v. Shemesh, FA 434145 (Nat.
Arb. Forum Apr. 20, 2005) (finding that passive holding of a domain name that
is identical to a complainant’s mark is not a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or
fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has not made any use of the <aromaremedy.com> domain name since registering it almost a year ago. In Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000), the respondent registered the <thecaravanclub.com> domain name, which the panel found was identical to the complainant’s THE CARAVAN CLUB mark, and made no use of the domain name. The panel held that the respondent was passively holding the disputed domain name, which permitted an inference of registration and use in bad faith. Because Respondent has also registered a domain name identical to a registered mark and not made any use of the domain name for almost a year, the Panel concludes that Respondent has demonstrated bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s passive holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
The Panel also determines that, given Complainant’s federal trademark registration in the United States, where Respondent resides, Respondent had actual or constructive knowledge of Complainant’s AROMAREMEDY mark when registering the <aromaremedy.com> domain name. Therefore, Respondent’s registration and use of the disputed domain name was in bad faith under Policy ¶ 4(a)(iii). See Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”); see also Ty Inc. v. Parvin, D2000-0688 (WIPO Nov. 9, 2000) (finding that the respondent’s registration and use of an identical and/or confusingly similar domain name was in bad faith where the complainant’s BEANIE BABIES mark was famous and the respondent should have been aware of it).
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 <aromaremedy.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 5, 2006
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