DECISION

 

Belkin Components v. Daniel Gallant

Claim Number: FA0104000097075

 

PARTIES

Complainant is Belkin Components, Compton, CA, USA (“Complainant”) represented by Lawrence G. Kurland, of Robin, Kitzes, Silk, Bryan & Cave, LLP.  Respondent is Daniel Gallant, London, ON, Canada (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <belken.com> registered with Network Solutions, Inc.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

 

Judge Ralph Yachnin, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on April 17, 2001; the Forum received a hard copy of the Complaint on April 18, 2001.

 

On April 20, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <belken.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 April 20, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 10, 2001 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@belken.com by e-mail.

 

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

 

On May 24, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from the Respondent to the Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

The <belken.com> domain name is confusingly similar to Complainant’s BELKIN family of marks.

 

Respondent has no rights or legitimate interests in the <belken.com> domain name.

 

Respondent registered and used the <belken.com> domain name in bad faith.

 

B. Respondent

No response was received from Respondent.

 

FINDINGS

Since 1981, Complainant has used its BELKIN mark in connection with the sale and production of computer and data transfer cables around the world.  Complainant registered the BELKIN trademark and service mark on the Principal Register of the United States Patent and Trademark Office as Registration Nos. 2,339,459 and 2,339,460, respectively, on April 11, 2000.  Complainant has been in continuous use of the marks since their registrations.

 

Complainant is the preeminent technology leader in connectivity solutions for the computer and consumer electronics user.  Specifically, Complainant is the leading manufacturer of computer cables and accessories.  In fiscal year 2000 alone, Complainant grossed $400 million in worldwide sales.  Complainant has made extensive and prominent use of its BELKIN mark since 1981, and has spent millions of dollars, each year, promoting its trademarks, products and services.

 

Complainant conducts business on the Internet through its <belkin.com>, <belkin.net> and <belkin.org> websites.  The <belkin.com> Website was registered on February 25, 1996.  Complainant conducts a substantial amount of business and marketing through its websites, and relies heavily on its ability to reach consumers through the Internet.

 

Respondent registered the <belken.com> domain name on June 5, 2000.  The <belken.com> Website offers, for sale, computer products and accessories similar to that sold by Complainant.

 

DISCUSSION

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

 

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.

 

Identical and/or Confusingly Simil

The <belken.com> domain name is similar to the Complainant’s BELKIN mark, but for the exchange of the letters “i” in the Complainant’s mark, and “e” in the Respondent’s domain name.  Furthermore, the domain name in dispute and the Complainant’s mark are audibly indistinguishable, further heightening the confusing similarity between the Complainant’s mark and the disputed domain name.  See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that the pronunciation and spelling between the domain name <venesign.com> and the Complainant’s mark, VeriSign, are so close that confusion can arise in the mind of the consumer);  see also YAHOO! Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain name <yawho.com> is confusingly similar to the Complainant’s YAHOO mark). 

The confusing similarity between the marks is also demonstrated by the Respondent’s use of a similar service mark on the <belken.com> Website.  Respondent’s service mark contains the word “BELKEN” within a purple oval-shaped logo; almost identical to Complainant’s registered BELKIN service mark, a purple oval-shaped logo.  This further confuses consumers visiting the <belken.com> Website that the products and services offered are those of the Complainant, and not the Respondent.

 

The <belken.com> domain name is therefore confusingly similar to Complainant’s BELKIN family of marks.

 

Rights or Legitimate Interests

Respondent has failed to come forward to demonstrate any rights or legitimate interests in the <belken.com> domain name.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent any evidence of preparation to use the domain name for any legitimate purpose, the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests).  Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to the domain name in dispute where Respondent fails to submit a response.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that “Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names”).

 

Respondent is not engaged in a bona fide offering of goods or services.  Respondent’s registration and use of the <belken.com> domain name, whose website offers similar and competing products as those of the Complainant, does not evidence a bona fide offering of goods or services when Respondent misleads users by utilizing a domain name which is confusingly similar to that of the Complainant.  See The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of domain names confusingly similar to Complainant’s mark to sell competing goods was an illegitimate use and not a bona fide offering of goods); see also Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website).

 

There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the <belken.com> domain name, pursuant to the Policy ¶4(c)(ii).  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).

 

Furthermore, there is no evidence that demonstrates Respondent is making a legitimate noncommercial or fair use of the <belken.com> domain name pursuant to the Policy ¶4(c)(iii), when Respondent is engaged in a for-profit enterprise. 

 

The Panel therefore concludes that Respondent does not have any rights or legitimate interests in the <belken.com> domain name and that Policy ¶4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

The Respondent is engaged in bad faith use of the <belken.com> domain name.  The registration and use of the disputed domain name is evidence of bad faith when Respondent attracts users to its Website for commercial gain by creating a likelihood of confusion with the Complainant’s mark.  The confusing similarity between Complainant’s BELKIN marks and their corresponding websites and the Respondent’s <belken.com> domain name, combined with Respondent’s offering of competing products constitutes bad faith pursuant to the Policy ¶4(b)(iv).  See Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of, or is sponsoring, the services offered at the site); see also Fossil Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (finding that the Respondent acted in bad faith by registering the domain name <fossilwatch.com> and using it to sell competing products of the Complainant).

 

            The Panel finds that Policy ¶4(a)(iii) has been satisfied.

 

DECISION

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

 

Accordingly, it is Ordered that the <belken.com> domain name be transferred from Respondent to Complainant.

 

 

 

Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

 

Dated: May 29, 2001