WeddingChannel.com v. Wan-Fu China, Ltd.
Claim Number: FA0702000913762
Complainant is WeddingChannel.com (“Complainant”), represented by Monica
R Talley, of Finnegan,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wweddingchannel.com>, registered with Domaindoorman LLC.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 9, 2007.
On February 9, 2007, Domaindoorman LLC confirmed by e-mail to the National Arbitration Forum that the <wweddingchannel.com> domain name is registered with Domaindoorman LLC and that Respondent is the current registrant of the name. Domaindoorman LLC has verified that Respondent is bound by the Domaindoorman LLC 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 February 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 5, 2007, 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@wweddingchannel.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 9, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant holds several trademark registrations for the WEDDINGCHANNEL.COM mark with the United States Patent and Trademark Office (“USPTO”) (including No. 2,564,964, issued on April 30, 2002), which have been used in connection with a website that offers advice, information, guidance, resources, and a network of gift registry services and vendor information regarding wedding-related services and products.
In connection with its Internet wedding services, Complainant has maintained a website at the <weddingchannel.com> domain name since 1997.
Complainant’s website receives approximately 2.5 million visitors each month.
Since 1999, more than $500 million in bridal registry gifts have been purchased on Complainant’s website.
Respondent’s <wweddingchannel.com> domain name, which it registered on November 29, 2006, resolves to a web page with commercial links to other online wedding service providers, including Complainant’s competitors.
Respondent receives pay-per-click revenues from hosting such links on its
website.
Respondent’s <wweddingchannel.com> domain name is confusingly similar to Complainant’s WEDDINGCHANNEL.COM mark.
Respondent does not have any rights or legitimate interests in the domain name <wweddingchannel.com>.
Respondent registered and uses the <wweddingchannel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. 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.
Complainant has established rights in the WEDDINGCHANNEL.COM mark pursuant to Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See 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.” See also 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.”
Respondent’s <wweddingchannel.com> domain name is confusingly similar to Complainant’s
WEDDINGCHANNEL.COM mark pursuant to Policy ¶ 4(a)(i) because the domain name
contains the WEDDINGCHANNEL.COM mark in its entirety and merely adds the letter
“w.” The addition of one letter
to Complainant’s mark fails to distinguish the disputed domain name from the
competing mark and is therefore insufficient to avoid a finding confusing similairty under
Policy ¶ 4(a)(i). See Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879
(Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name
<compq.com> is confusingly similar to a complainant’s COMPAQ mark because
the omission of the letter “a” in the domain name does not significantly change
the overall impression of the mark); see
also
The Panel thus finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have rights or legitimate interests in the <wweddingchannel.com> domain name. Once Complainant makes out a prima facie case in support of its allegations, the burden shifts to Respondent to show that it nonetheless has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001):
Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.
Complainant alleges that Respondent is not commonly known by the domain name <wweddingchannel.com>. The WHOIS information identifies Respondent as “Wan-Fu China, Ltd.,” and we find no other evidence in the record suggesting that Respondent is commonly known by the disputed domain name. Therefore, we conclude that Respondent is not commonly known by the <wweddingchannel.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (concluding that that fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a 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) (finding that a respondent does not have rights in a domain name where that respondent is not known by the mark).
We also note that it is undisputed that Respondent is using the <wweddingchannel.com> to redirect Internet users to a pay-per-click commercial website that offers links to businesses offering goods and services similar to those of Complainant. Thus, Respondent’s diversion of Complainant’s customers and potential customers does not consititute a bona fide offering of goods and services under Policy ¶ 4(c)(i), or a legitimate noncommmercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). See also Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003): “Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s undenied redirection of Internet users to the <wweddingchannel.com>, which offers links to competing good and services, is likely to disrupt Complainant’s business by diverting business away from Complainant. Therefore, Respondent’s registration and use of the <wweddingchannel.com> domain name is in bad faith pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”). See also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that a respondent acted in bad faith by attracting Internet users to a website that competes with a complainant’s business).
In addition, it appears that Respondent registered the <wweddingchannel.com> domain name with at least constructive knowledge of
Complainant’s rights in the trademark
WEDDINGCHANNEL.COM by virtue of Complainant’s prior registration of that
mark with the United States Patent and Trademark Office. Registration of a confusingly similar domain
name despite such constructive knowledge is, without more, evidence of bad
faith registration and use of the domain name pursuant to Policy ¶
4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <wweddingchannel.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 16, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum