International Lutheran Laymen's League, d/b/a Lutheran Hour Ministries v. Whois Service c/o
Claim Number: FA0709001075393
Complainant is International Lutheran Laymen's League d/b/a Lutheran
Hour Ministries (“Complainant”),
represented by Michael A. Thorne of Spencer Fane Britt & Browne LLP, 1 North Brentwood Blvd., Suite
1000, St. Louis, MO, 63105.
Respondent is Whois Service c/o Belize Domain WHOIS Service (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <thelutheranhour.org>, registered with Domain Contender, LLC.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically September 7, 2007; the National Arbitration Forum received a hard copy of the Complaint September 10, 2007.
On September 7, 2007, Domain Contender, LLC confirmed by e-mail to the National Arbitration Forum that the <thelutheranhour.org> domain name is registered with Domain Contender, LLC and that Respondent is the current registrant of the name. Domain Contender, LLC verified that Respondent is bound by the Domain Contender, LLC registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 13, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 3, 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@thelutheranhour.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 10, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <thelutheranhour.org>, is identical to Complainant’s THE LUTHERAN HOUR mark.
2. Respondent has no rights or legitimate interests in the <thelutheranhour.org> domain name.
3. Respondent registered and used the <thelutheranhour.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, International
Lutheran Laymen's League d/b/a Lutheran Hour Ministries, is a nonprofit
Christian outreach ministry supporting churches worldwide with over 100,000 volunteers. Complainant has offered services since 1917
and currently offers radio and television broadcasting among its other
services. Complainant’s best-known
program is “The Lutheran Hour,” which was first broadcast in 1930 and is the
world’s longest-running Christian outreach radio program. The program now broadcasts on some 800
stations. Complainant also operates
several websites located at the <lhm.org> and <lutheranhour.org>
domain names. Complainant holds a
registration for its THE LUTHERAN HOUR mark with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 594,663 issued August 31, 1954).
Respondent, Whois Service c/o
Belize Domain WHOIS Service, registered the disputed domain name April 2,
2006. The website located at the
disputed domain name displays hyperlinks to third-party websites of
Complainant’s competitors. The website
located at the disputed domain name generates click-through revenue for
Respondent.
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 will draw such inferences as the Panel considers to be 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 Complainant to 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.
Under Policy ¶ 4(a)(i), Complainant
must first establish rights in the THE LUTHERAN HOUR mark. Complainant’s registration of the mark with
the USPTO meets this burden. See 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.”); see also 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.”).
The disputed domain name
incorporates Complainant’s entire THE LUTHERAN HOUR mark, simply
deleting the spaces and adding the generic top-level domain (“gTLD”)
“.com.” The Panel finds the disputed
domain name is identical to Complainant’s mark.
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant’s assertion that Respondent lacks rights and legitimate interests in the disputed domain name satisfies the requirement of Policy ¶ 4(a)(ii) that a prima facie case be established that Respondent does not hold rights or legitimate interests in the disputed domain name. See 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.”); see also 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).”).
Respondent failed to submit a Response in this proceeding, which leads the Panel to presume that Respondent lacks rights and legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed). Although no further analysis is required, the Panel reviews the record to determine if the evidence establishes Respondent’s rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Nothing in the record, including the WHOIS information,
leads the Panel to conclude that Respondent, “Whois
Service c/o Belize Domain WHOIS Service,” is commonly known by the <thelutheranhour.org>
domain name. The Panel finds that
Respondent is unable to establish rights under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii)
does not apply); see also Am. Online, Inc. v. World
Photo Video & Imaging Corp., FA
109031 (Nat. Arb. Forum May 13, 2002) (finding respondent was not commonly
known by <aolcamera.com> or <aolcameras.com> because respondent was doing business as
“Sunset Camera” and “World Photo Video & Imaging Corp.”).
The website located at the
disputed domain name diplays hyperlinks to third-party websites of
Complainant’s competitors, which presumably generates click-through revenue for
Respondent. The Panel finds that this
activity is not a bona fide offering
of goods or services or a legitimate noncommercial or fair use under Policy
¶¶ 4(c)(i) and (iii).
See WeddingChannel.com Inc. v. Vasiliev,
FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s
use of the disputed domain name to redirect Internet
users to websites unrelated to the complainant’s mark, websites where the
respondent presumably receives a referral fee for each misdirected Internet
user, was not a bona fide offering of goods or services as contemplated
by the Policy); see also 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).”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
The disputed domain name resolves to a website displaying hyperlinks to Complainant’s competitors. The Panel finds that Respondent registered and used the disputed domain name to disrupt Complainant’s business and that such conduct supports findings of bad faith under Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
The website that Respondent located at the disputed domain name is being used to confuse Internet users as to Complainant’s affiliation with the disputed domain name for Respondent’s commercial gain through the generation of click-through revenue. The Panel finds this behavior supports findings of bad faith registration and use under Policy ¶ 4(b)(iv). See 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.’”); 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)).
The Panel finds that Complainant 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 <thelutheranhour.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: October 17, 2007.
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