Dollywood Company v. Dewayne Hensley
Claim Number: FA0904001256567
Complainant is Dollywood
Company (“Complainant”), represented by Mark S. Graham, of Luedeka, Neely &
REGISTRAR
The domain name at issue is <dollywoodresort.com>, registered with 1 & 1 Internet Ag.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On April 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 6, 2009 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@dollywoodresort.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 <dollywoodresort.com> domain name is confusingly similar to Complainant’s DOLLYWOOD mark.
2. Respondent does not have any rights or legitimate interests in the <dollywoodresort.com> domain name.
3. Respondent registered and used the <dollywoodresort.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dollywood Company, operates an amusement and
theme park under the DOLLYWOOD mark.
Complainant has operated the theme park under the DOLLYWOOD mark
continuously since May of 1986 and operates the <dollywood.com> domain
name in connection with its business.
Complainant first registered its DOLLYWOOD mark with the United States
Patent and Trademark Office (“USPTO”) on
Respondent registered the disputed 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 has registered its DOLLYWOOD mark with the USPTO, which sufficiently establishes its rights under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
The Panel finds Respondent’s disputed domain name is
confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i) because it
combines Complainant’s mark with the generic term “resort,” which does not
distinguish the two, and because the addition of a generic top-level domain is
irrelevant when conducting a confusingly similar analysis. See Constellation
Wines
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <dollywoodresort.com> domain name. Once a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See 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).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts the disputed domain name does not
resolve to an active website. The Panel
finds Respondent has failed to make an active use of the disputed domain name,
which 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
Furthermore, Complainant contends Respondent is not commonly
known by the disputed domain name. The
WHOIS information lists Respondent as “Dewayne Hensley,” and Complainant
asserts Respondent is not authorized to use the DOLLYWOOD mark in any
manner. Thus, the Panel finds Respondent
is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See 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); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that the enumerated Policy ¶ 4(b) factors are not exhaustive, and thus the totality of the circumstances may be considered when analyzing bad faith registration and use under Policy ¶ 4(a)(iii). See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
Complainant asserts the disputed domain name does not
resolve to an active website. The Panel
finds that Respondent has failed to make an active use of the disputed domain
name, which is indicative of Respondent’s bad faith registration and use under
Policy ¶ 4(a)(iii).
See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228
(WIPO
The Panel finds 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 <dollywoodresort.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: May 22, 2009
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