PFIP, LLC v. Vendetta Marketing
Claim Number: FA0703000931670
Complainant is PFIP, LLC (“Complainant”), represented by Teresa
C. Tucker, of Grossman, Tucker, Perreault & Pfleger
PLLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <planetwitless.com>, registered with Go Daddy Software, 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
On
On March 7, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 27, 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@planetwitless.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <planetwitless.com> domain name is confusingly similar to Complainant’s PLANET FITNESS mark.
2. Respondent does not have any rights or legitimate interests in the <planetwitless.com> domain name.
3. Respondent registered and used the <planetwitless.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, PFIP, LLC, operates over 130 fitness clubs
under the PLANET FITNESS mark in the
On
Respondent has been the subject of another proceeding with
Complainant, in which the panel ordered the transfer of the
<boycottplanetfitness.com> domain name to Complainant. See PFIP,
LLC v. Vendetta Marketing, FA
861594 (Nat. Arb. Forum
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.
Through registration of the PLANET FITNESS mark with the
USPTO, the Panel finds that Complainant has established rights in the mark
pursuant to Policy ¶ 4(a)(i).
Even though Complainant has rights in the PLANET FITNESS
mark, the <planetwitless.com>
domain name is not confusingly similar to this mark. The terms “witless” and “fitness” are
completely unrelated and it is not likely that a consumer would confuse the two
terms. Respondent’s domain name is
therefore sufficiently distinguishable from Complainant’s mark under Policy ¶
4(a)(i). See Tire Discounters, Inc. v.
TireDiscounter.com, FA
679485 (Nat. Arb. Forum
Because the <planetwitless.com> domain name is not confusingly similar to Complainant’s registered mark, the Panel finds that Complainant has not satisfied Policy ¶ 4(a)(i).
The Panel does not need to inquire into Respondent’s rights or legitimate interests or registration and use in bad faith, as Complainant has failed to satisfy the first element of the Policy. See Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)); see also Pom Wonderful LLC v. Tara Redavid, FA 846577 (Nat. Arb. Forum Jan. 8, 2007) (deciding not to consider the second and third elements of the Policy after the complainant failed to establish that the disputed domain name was confusingly similar to its mark under the first element of the Policy).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
James A. Carmody, Esq., Panelist
Dated: April 10, 2007
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