Manufacturers’ Agents National Association v. Domain Administrator / DVLPMNT MARKETING, INC.
Claim Number: FA1404001553434
Complainant is Manufacturers’ Agents National Association (“Complainant”), represented by Zachary Page, California, USA. Respondent is Domain Administrator / DVLPMNT MARKETING, INC. (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <manaonline.com>, registered with DNC Holdings, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 9, 2014; the National Arbitration Forum received payment on April 9, 2014.
On April 14, 2014, DNC Holdings, Inc. confirmed by email to the National Arbitration Forum that the <manaonline.com> domain name is registered with DNC Holdings, Inc. and that Respondent is the current registrant of the name. DNC Holdings, Inc. has verified that Respondent is bound by the DNC Holdings, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 18, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 8, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@manaonline.com. Also on April 18, 2014, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 13, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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
Complainant is a non-profit trade association for sales representatives and their principals. Complainant was formed in 1947 and has used the service mark MANA since its inception; the mark was registered in the United States in 1995. Complainant has owned the domain name <manaonline.org> since at least 1997.
Complainant contends that the disputed domain name <manaonline.com> is confusingly similar to its MANA mark. In support thereof, Complainant notes that the domain name incorporates the MANA mark in its entirety, along with the generic term “online.” Complainant also points out that but for the top-level domain component, the disputed domain name is identical to Complainant’s own domain name.
Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name. In support thereof, Complainant alleges that Respondent is not commonly known by the disputed domain name; that Complainant has not licensed or otherwise permitted Respondent to use its mark; and that Respondent is not making a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the domain name. Complainant states that the domain name resolves to a website that primarily displays advertisements relating to sales representatives and other business concerns, and the links on the site are to competitors of Complainant.
Finally, Complainant contends that the disputed domain name was registered and is being used in bad faith. Complainant asserts that bad faith can be inferred from Respondent’s use of the domain name to display pay-per-click advertising that links to Complainant’s competitors. Noting that Respondent is the registrant of over 60,000 domain names, Complainant accuses Respondent of a pattern of registering domain names for the purpose of generating revenue through similar advertising or by reselling domain names to the holders of corresponding trademarks. Complainant also notes that at least two other domain names registered by Respondent have been transferred via proceedings under the Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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."
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.
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.”).
The disputed domain name is identical to Complainant’s MANA mark, but for the addition of the generic term “online” and the “.com” top-level domain. These alterations do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., LBX Co. v. Lumberman’s Exchange, FA 1423155 (Nat. Arb. Forum Feb. 8, 2012) (finding <lbxonline.com> confusingly similar to LBX). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and apparently its sole use has been for a website that displays pay-per-click advertising keyed to Complainant’s mark. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(ii) of the Policy, bad faith may be shown by evidence that the domain name was registered “in order to prevent the owner of the trademark or service mark from reflecting the mark in
a corresponding domain name, provided that [Respondent] ha[s] engaged in
a pattern of such conduct.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
To have registered the domain name in bad faith, Respondent must have been aware of Complainant or Complainant’s mark when it registered the domain name, and the registration must in some way have been targeted at Complainant or the mark. Actual knowledge of the mark is required, although such knowledge may be inferred from circumstantial evidence. See, e.g., Kanal, Inc. v. Domain Admin, FA 1478238 (Nat. Arb. Forum Feb. 12, 2013).
Considering the totality of the circumstances present here—including the similarity between the disputed domain name and Complainant’s domain name, and the content of the website to which the disputed domain name resolves—the Panel infers that Respondent was aware of Complainant when it registered the domain name and that Respondent is using the domain name in a manner intended to exploit confusion with Complainant’s website and service mark. These inferences are indicative of bad faith under paragraph 4(b)(iv). In addition, Respondent has been found to have registered and used several other domain names in bad faith in previous proceedings under the Policy, supporting a finding of bad faith under paragraph 4(b)(ii). Accordingly, the Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <manaonline.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 19, 2014
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