Bush Equities, Inc. d/b/a Cuddledown, Inc. v.
Claim Number: FA0711001106657
Complainant is Bush Equities, Inc. d/b/a Cuddledown, Inc. (“Complainant”), represented by Jonathan
T. Harris, of Lambert Coffin,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cuddledown.net>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 7, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 8, 2007.
On November 8, 2007, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <cuddledown.net> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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 November 16, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 6, 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@cuddledown.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 11, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <cuddledown.net> domain name is identical to Complainant’s CUDDLEDOWN mark.
2. Respondent does not have any rights or legitimate interests in the <cuddledown.net> domain name.
3. Respondent registered and used the <cuddledown.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bush Equities, Inc. d/b/a Cuddledown, Inc., is the distributor of bedding, pillow cases, and towels. Complainant has used the CUDDLEDOWN mark continuously for the distribution of its products since 1975. Complainant registered the mark with the U.S. Patent and Trademark Office (“USPTO”) on February 25, 1986 (Reg. No. 1,384,325).
Respondent registered the <cuddledown.net> domain name on February 7, 2006. Respondent is currently using the disputed domain name to advertise competing products, Complainant’s products, and unrelated products.
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 registered the CUDDLEDOWN mark with the
USPTO, and has therefore established rights to the mark under Policy ¶ 4(a)(i). See 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.”); see also 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.”).
The <cuddledown.net> domain name is identical to the CUDDLEDOWN mark because it incorporates the entire mark. The addition of the generic top-level domain (“gTLD”) “.net” does not sufficiently distinguish the mark because all domain names are required to have top-level domains. The Panel finds that the disputed domain name is identical to Complainant’s CUDDLEDOWN 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 Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference").
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent has neither rights nor legitimate interests in the <cuddledown.net> domain name. Complainant has the initial burden of showing that Respondent lacks all rights and legitimate interests in the disputed domain name. Once Complainant has made a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case and shown that Respondent lacks rights and legitimate interests in the <cuddledown.net> domain name pursuant to Policy ¶ 4(a)(ii). 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to respond to the Complaint creates a
presumption that Respondent lacks all 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 Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
However, the Panel will examine all evidence in the record to determine
if Respondent has rights or legitimate interests in the disputed domain name
under Policy ¶ 4(c).
Complainant asserts that Respondent has never been authorized to use the CUDDLEDOWN mark, and has never been and is not commonly known by the disputed domain name. In addition, the WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <cuddledown.net> domain name 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 Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Respondent is using the website that resolves from the
disputed domain name to advertise links to websites that sell competing as well
as unrelated products. Respondent’s
website also includes a link to Complainant’s own website. The Panel finds that Respondent’s use of the
disputed domain name is not a bona fide
offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of
[Complainant’s] SAFLOK mark to market products that compete with Complainant’s
goods does not constitute a bona fide offering of goods and services.”); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that
the respondent was not using the domain names for a bona fide offering
of goods or services nor a legitimate noncommercial or fair use because the
respondent used the names to divert Internet users to a website that offered
services that competed with those offered by the complainant under its marks); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb.
Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to
Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is commercially benefiting by using the <cuddledown.net> domain name to display
links to websites competing with Complainant’s business as well as links to
unrelated websites. Respondent uses
Complainant’s CUDDLEDOWN mark in the disputed domain name and displays a link
to Complainant’s own website. The Panel
finds that Respondent’s use is capable of creating confusion as to
Complainant’s source, sponsorship, affiliation, or endorsement of the <cuddledown.net> domain name. The Panel finds that Respondent’s commercial
use of the CUDDLEDOWN mark is evidence of registration and use in bad faith
under Policy ¶ 4(b)(iv).
Moreover, the Panel finds that Respondent’s use of the
disputed domain name to advertise links to competing products constitutes bad
faith registration and use under Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure,
Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding that the respondent registered the domain name in
question to disrupt the business of the complainant, a competitor of the
respondent); see also Disney Enters., Inc.
v. Noel, FA 198805 (Nat. Arb. Forum Nov.
11, 2003) (“Respondent registered a domain name confusingly similar to
Complainant's mark to divert Internet users to a competitor's website. It is a
reasonable inference that Respondent's purpose of registration and use was to
either disrupt or create confusion for Complainant's business in bad faith
pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
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 <cuddledown.net> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 25, 2007
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