Artistic Pursuit LLC v.
calcuttawebdevelopers.com
Claim Number: FA0701000894477
PARTIES
Complainant is Artistic Pursuit, LLC (“Complainant”), represented by James
B. Astrachan, of Astrachan Gunst Tomas, P.C., 217 E. Redwood
Street, Suite 2100, Baltimore, MD 21202.
Respondent is calcuttawebdevelopers.com (“Respondent”),
REGISTRAR
The domain name at issue is <artisticpursuit.net>, registered
with Go
Daddy Software, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On
On
A Response was received electronically on
On March 1, 2007, 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <artisticpursuit.net> domain name is confusingly similar to Complainant’s ARTISTIC PURSUIT mark.
2. Respondent does not have any rights or legitimate interests in the <artisticpursuit.net> domain name.
3. Respondent registered and used the <artisticpursuit.net> domain name in bad faith.
B. Respondent
1.
Respondent
does not dispute that the domain name at issue is identical or
confusingly similar to Complainant’s ARTISTIC
PURSUIT mark.
2.
Respondent
claims that the domain name at issue was registered before
Complainant’s application to register the ARTISTIC PURSUIT with the
U.S. Patent & Trademark Office.
Respondent does not discuss its own use of the domain name at issue.
3.
Respondent,
by implication, denies that the domain name at issue was registered in bad
faith.
FINDINGS
The record provided by the parties is
sparse. Complainant claims use of the
ARTISTIC PURSUIT mark since
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.”
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:
(1) the domain name registered by the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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 filed a trademark
registration application with the United States Patent and Trademark Office
(“USPTO”) for the ARTISTIC PURSUIT mark (Serial No. 78/933,276 filed July 19,
2006) but does not yet have a registered mark.
Nevertheless, a trademark registration is not required by Policy ¶
4(a)(i) and Complainant can rely on its common law rights to establish rights
pursuant to Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood,
D2000-0131 (WIPO
Complainant provides some evidence
showing its use of the ARTISTIC PURSUIT mark in commerce by attaching evidence
of a website at <artisticpursuit.com>. Complainant’s trademark application lists a
first use in commerce date of October 22, 2005, although the text of the
Complaint alleges first use a month later.
In any event, this use is three months before Respondent’s registration
of the disputed domain name. Complainant
has established common law rights in the mark pursuant to Policy ¶
4(a)(i). See Enfinger Dev., Inc. v.
Montgomery, FA 370918 (Nat. Arb. Forum
As previously noted, Complainant has not
offered much to prove rights in the ARTISTIC PURSUIT mark other than a claim in
the Complaint and a copy of the <artisticpursuit.com> website. An application to register a trademark is
only proof of a claim to the mark.
However, in light of the total failure of Respondent to traverse this
first element of the Policy, Complainant wins this issue by default.
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima
facie case that Respondent lacks rights and legitimate interests in the
disputed domain name under Policy ¶ 4(a)(ii), and the burden then shifts to
Respondent to show it does have rights or legitimate interests. See Document Techs., Inc. v. Int’l Elec.
Communc’s Inc., D2000-0270 (WIPO
Respondent is not commonly known by
the disputed domain name, nor does it so claim.
Respondent does not claim any particular legitimate use of the domain
name at issue in connection with a website or that it is licensed to use
Complainant’s mark. The Panel holds
that Respondent does not have rights or legitimate interests in the disputed
domain name according to Policy ¶ 4(c)(ii).
See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent apparently registered
the disputed domain name to settle a contract dispute with Complainant. Respondent is displaying a website virtually
identical to Complainant’s website. Respondent
has registered the disputed domain name for the primary purpose of disrupting
Complainant’s business, which constitutes bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See SR Motorsports v. Rotary Performance,
FA 95859 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <artisticpursuit.net> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated:
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