Concord Adex Developments Corp. v. Jeff Lenglet c/o Alien Elite
Claim Number: FA0702000915556
Complainant is Concord Adex Developments Corp. (“Complainant”), represented by R.
Grant Cansfield, 181 Bay Street, Suite 1800, Toronto, ON M5J 2T9, Canada. Respondent is Jeff Lenglet c/o Alien Elite (“Respondent”), 5 Mariner TERR, ATTN: cityplacetoronto.com,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cityplacetoronto.com>, registered with Schlund+Partner Ag.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 13, 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@cityplacetoronto.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 16, 2007, pursuant to Complaintant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <cityplacetoronto.com> domain name is confusingly similar to Complainant’s CITYPLACE mark.
2. Respondent does not have any rights or legitimate interests in the <cityplacetoronto.com> domain name.
3. Respondent registered and used the <cityplacetoronto.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Concord Adex Developments Corp., has
continuously used the CITYPLACE mark in connection with commercial and
residential real estate developments in
Complainant holds several trademark registrations with the
Canadian Intellectual Property Office for the CITYPLACE mark (Reg. No. TMA345,511 issued
Respondent’s <cityplacetoronto.com> domain name, which it registered on August 18, 2006, resolves to a website providing criticism of Complainant’s real estate development and displaying links that redirect Internet users to third-party websites.
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 CITYPLACE mark
pursuant to Policy ¶ 4(a)(i) through registration of
the mark in
Because Respondent’s conduct in the present case is similar
to these previous panel decisions, the Panel finds that Respondent has failed
to sufficiently distinguish the <cityplacetoronto.com>
domain name from its mark by adding the term “toronto” and the generic-top
level domain “.com” and as a result, the <cityplacetoronto.com> domain name is confusingly similar to the
CITYPLACE mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant maintains that Respondent does not have rights
to or legitimate interests in the disputed 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25,
2006) (“Complainant must first make a prima facie showing that Respondent does not
have rights or legitimate interest in the subject domain names, which burden is
light. If Complainant satisfies its
burden, then the burden shifts to Respondent to show that it does have rights
or legitimate interests in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v.
Entertainment Commentaries,
FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must
first make a prima facie case that the respondent lacks rights and
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before
the burden shifts to the respondent to show that it does have rights or
legitimate interests in a domain name).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <cityplacetoronto.com> domain
name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9,
2000) (finding that by not submitting a response, the respondent has failed to
invoke any circumstance which could demonstrate any rights or legitimate
interests in the domain name); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (failure to respond can be construed as an admission that a
respondent has no legitimate interest in the domain names). However, the Panel
will now examine the record to determine if Respondent has rights or legitimate
interests under Policy ¶ 4(c).
Because the WHOIS information lists the domain name
registrant as “Jeff Lenglet c/o Alien Elite,” and there is no other evidence in
the record suggesting that Respondent is commonly known by the disputed domain
name, the Panel finds that Respondent has not established rights or legitimate
interests in the disputed domain name under Policy ¶ 4(c)(ii). M.
Shanken Communications, Inc. v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat.
Arb. Forum
Respondent is using the disputed domain name to maintain a
website displaying information critical of Complainant, as well as links to
third-party websites unrelated to Complainant.
In Weekley Homes, L.P. v. Fix My
House Or Else?, FA 96609 (Nat. Arb. Forum Apr. 18, 2001), the panel
found that the establishment of a website containing criticism is not a
legitimate use of the <davidweekleyhome.com> domain name because the
disputed domain name was confusingly similar to the complainant's DAVID WEEKLEY
HOMES mark. Thus, Respondent is also not using the
disputed domain name in connection with 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) by
operating a complaint site. See Name.Space
Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000)
(finding that although the content of the respondent’s site may be entitled to
First Amendment protection, the respondent’s use of the complainant’s trademark
in the domain name of its site is not protected).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent
is using the disputed domain name to criticize Complainant’s business
practices. The Panel finds that such
conduct illustrates bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Nw. Airlines, Inc. v. Jorgenson, FA 96586 (Nat. Arb. Forum
Mar. 28, 2001) (“Respondent registered the domain
name for the purpose of bringing Internet users desiring to learn more about
Complainant to Respondent's site for the intended purpose of publishing
contrary and critical views of Complainant thus disrupting the business of
Complainant. Registering a domain name identical with the
mark of Complainant, for this purpose, is bad faith.”); see also Robo Enters., Inc. v.
Tobiason, FA 95857 (Nat. Arb. Forum Dec. 24, 2000)
(“Respondent choose the domain name to cause persons seeking information on
ROBO ENTERPRISES to be drawn to Respondent’s website for the purpose of
exposing the user to negative and critical views of Complainant. Choosing and
operating the domain name for such a purpose in this case is bad faith.”).
Moreover, Respondent’s website
also contains links to third-party websites providing products and services
unrelated to Complainant. The Panel
infers that these are sponsored links and that Respondent is earning
click-through fees for each consumer it diverts to other websites. As a result, Respondent has registered and is
using the disputed domain name in bad faith according to Policy ¶ 4(b)(iv). See The
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cityplacetoronto.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 23, 2007
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