DECISION

 

Citadel Communications Corporation and Citadel Broadcasting Company v. Nahid Tavakoli

Claim Number: FA0108000099132

 

PARTIES

Complainant is Citadel Communications Corporation and Citadel Broadcasting Company, Las Vegas, NV (“Complainant”) represented by Paul D. Steinman, of Eckert, Seamans, Cherin & Mellott, LLC.  Respondent is Nahid Tavakoli, Goher - Dasht, Iran (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME 

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

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on August 17, 2001; the Forum received a hard copy of the Complaint on August 20, 2001.

 

On August 21, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <katcountry.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 August 23, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 12, 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@katcountry.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 September 26, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 <katcountry.com> domain name is confusingly similar to Complainant's federally  registered trademarks KAT COUNTRY and CAT COUNTRY.

 

Respondent has no rights or legitimate interests in the disputed domain name.

 

The disputed domain name has been registered and used in bad faith.

 

B. Respondent

Respondent has failed to submit a Response.

 

FINDINGS

Since February 1988, complainant has used its CAT COUNTRY mark in connection with radio broadcast services. Complainant has used its other federally registered trademark, KAT COUNTRY, since August 1992 in connection with the same services.  Complainant has held Federal Registration No. 1,808,007 on the mark CAT COUNTRY since November 1993, and Federal Registration no. 2,441,289 on the mark KAT COUNTRY since April 1998.

 

Complainant has over 200 radio stations operating in 42 markets nationwide and is recognized as a major provider of radio entertainment within the country music format.  Its marks CAT COUNTRY and KAT COUNTRY are synonymous with its programming and are the result of considerable investment and promotion.

 

Respondent registered the <katcountry.com> on March 15, 2000.  Respondent has not made any use of the disputed domain name since its registration.  The domain is listed for sale on the domain name marketplace GreatDomains.com for $2,500.  The Respondent acquired the domain name from Sam Hill who is currently listed as the billing contact for <katcountry.com>.  Mr. Hill registered the domain immediately after his employment with Complainant was terminated.  On January 24, 2000, immediately before the termination of his employment, Mr. Hill demanded compensation from the Complainant for the domain name <katcountry.com>

 

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 Similar

Complainant, through its registration and use, has established that is has rights in the CAT COUNTRY and KAT COUNTRY marks.  Furthermore, the <katcountry.com> domain name is identical to Complainant's KAT COUNTRY mark because it contains Complainant's registered mark in its entirety combined with ".com".  The addition of ".com" to the words "katcountry" is not enough to distinguish it from the Complainant's mark.  See The Fed’n of Gay Games, Inc. v. Hodgson & Scanlon, D2000-0432 (WIPO June 28, 2000) (finding that the domain name <gaygames.com> is identical to Complainant's registered trademark GAY GAMES); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “net” or “com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

 

The <katcountry.com> domain name is confusingly similar to Complainant's CAT COUNTRY mark because there is only one letter difference and it is phonetically similar.  See Hewlett-Packard Co. v. Cupcake City, FA 93562 (Nat. Arb. Forum Apr. 7, 2000) (finding that a domain name which is phonetically identical to Complainant’s mark satisfies ¶ 4(a)(i) of the Policy).

 

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

 

Rights or Legitimate Interests

Respondent has failed to come forward with a response and therefore it is presumed that Respondent has no rights or legitimate interest in the <katcountry.com> domain name. 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).

 

Furthermore, Respondent's offer to sell the disputed domain name for $2,500 on GreatDomains.com is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).  See J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit).

 

Respondent's passive holding of the disputed domain name does not help to demonstrate that it has rights or legitimate interests in the disputed domain name.  See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in said domain name).

 

There is no evidence on record, and Respondent has not come forward to establish that it is commonly known by the <katcountry.com> domain name pursuant to Policy ¶ 4(c)(ii).  See Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “…merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”).

 

Furthermore, there is no evidence that demonstrates Respondent is making a legitimate noncommercial, or fair use of the <katcountry.com> domain names, pursuant to Policy ¶ 4(c)(iii).  See 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).

 

The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name, and that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

Respondent's passive holding constitutes a finding of bad faith, pursuant to Policy ¶ 4(a)(iii).  See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).

 

Furthermore, Respondent's offer to sell the disputed domain name for $2,500 on GreatDomains.com supports a finding of bad faith under ¶ 4(b)(i).  See Educational Testing Serv. v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that a general offer of sale combined with no legitimate use of the domain name constitutes registration and use in bad faith).

 

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 <katcountry.com> domain name be transferred from

Respondent to Complainant.

 

 

John J. Upchurch, Panelist

 

Dated: October 1, 2001