Plain 'N Fancy Kitchens, Inc. v. Traverito Traverito
Claim Number: FA0704000964328
Complainant is Plain 'N Fancy Kitchens, Inc. (“Complainant”), represented by Harvey
Freedenberg, of McNees Wallace & Nurick LLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <plainandfancycabinetry.com>, registered with Moniker Online Services, 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 April 27, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 17, 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@plainandfancycabinetry.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 <plainandfancycabinetry.com> domain name is confusingly similar to Complainant’s PLAIN & FANCY CUSTOM CABINETRY mark.
2. Respondent does not have any rights or legitimate interests in the <plainandfancycabinetry.com> domain name.
3. Respondent registered and used the <plainandfancycabinetry.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Plain ‘N Fancy Kitchens, Inc., is a producer
and manufacturer of kitchen cabinets and other cabinetwork products. In connection with the provision of those
products and related services, Complainant has registered the PLAIN & FANCY
CUSTOM CABINETRY mark with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 2,393,741 issued
Respondent registered the <plainandfancycabinetry.com>
domain name on
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 asserts rights in the PLAIN & FANCY CUSTOM
CABINETRY mark through registration with the USPTO. The Panel finds that Complainant’s timely
registration and subsequent use of the PLAIN & FANCY CUSTOM CABINETRY mark
sufficiently establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum
Respondent’s disputed domain name
replaces the ampersand in Complainant’s mark with the word “and,” eliminates
the word “custom” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the replacement of an
ampersand with its language equivalent, the elimination of a single word and
the addition of a gTLD fails to sufficiently distinguish the domain name from
the protected mark pursuant to Policy ¶ 4(a)(i). See 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); see also McKinsey Holdings, Inc. v. Indidom, D2000-1616 (WIPO Jan.
31, 2001) (finding that the removal of the ampersand from “McKinsey &
Company” does not affect the user’s understanding of the domain name, and
therefore the domain name <mckinseycompany.com> is identical and/or
confusingly similar to the mark “McKinsey & Company”); see also WestJet Air Ctr.,
Inc. v. W. Jets LLC, FA 96882 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights or
legitimate interests in the disputed domain name. In instances where Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to set forth concrete evidence
showing that it possesses rights or legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(a)(ii). See Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376
(WIPO
The disputed domain name resolves to a website containing
links to third-party, commercial websites, some of which offer goods and
services in direct competition with those offered by Complainant’s
business. The Panel finds that such use
is neither a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii).
See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb.
Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the
complainant’s marks to send Internet users to a website which displayed a
series of links, some of which linked to the complainant’s competitors, was not
a bona fide offering of goods or services); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat.
Arb. Forum
Complainant contends that Respondent is not commonly known
by the disputed domain name. A review of
Respondent’s WHOIS information reveals that the registrant of the
<plainandfancycabinetry.com>
domain name is “Traverito Traverito.” In
lieu of any countervailing evidence, the Panel finds that Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website
featuring links to Complainant’s competitors.
The Panel finds that such use constitutes a disruption of Complainant’s
business, which evinces registration and use in bad faith pursuant to Policy ¶
4(b)(iii). See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb.
Forum
Presumably, Respondent enjoys financial enrichment through
the misdirection of unsuspecting Internet users to its own website. Respondent’s use is also likely to create
confusion among unsuspecting Internet users as to the source and affiliation of
the resulting website. The Panel finds
that such use constitutes an attraction for commercial gain, which evinces
registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat.
Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its
diversionary use of the complainant's mark when the domain name resolves to
commercial websites and the respondent fails to contest the complaint, it may
be concluded that the respondent is using the domain name in bad faith pursuant
to Policy ¶ 4(b)(iv)); see also Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”).
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 <plainandfancycabinetry.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 31, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum