Dalworth Carpet Cleaning, Inc. v. Dalworth Carpet Cleaning, Inc. c/o Domain Administrator
Claim Number: FA0606000727717
Complainant is Dalworth Carpet Cleaning, Inc. (“Complainant”), represented by John A. Thomas, of Glast, Phillips & Murray, P.C., 13355 Noel Road, Suite 2200, Dallas, TX 75240. Respondent is Dalworth Carpet Cleaning, Inc. c/o Domain Administrator (“Respondent”), 12750 South Pipeline Road, Euless, TN 76040.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <dalworthcarpetcleaning.com>, registered with Nameview, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 6, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 8, 2006.
On June 6, 2006, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <dalworthcarpetcleaning.com> domain name is registered with Nameview, Inc. and that Respondent is the current registrant of the name. Nameview, Inc. has verified that Respondent is bound by the Nameview, Inc. 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 June 14, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 5, 2006 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@dalworthcarpetcleaning.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 12, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary 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 <dalworthcarpetcleaning.com> domain name is identical to Complainant’s DALWORTH CARPET CLEANING mark.
2. Respondent does not have any rights or legitimate interests in the <dalworthcarpetcleaning.com> domain name.
3. Respondent registered and used the <dalworthcarpetcleaning.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dalworth Carpet Cleaning, Inc., cleans and
repairs carpets, drapery, upholstery, air ducts, marble, ceramic tile and
grout. In connection with these
services, Complainant holds a trademark registration with the United States
Patent and Trademark Office (“USPTO”) for the DALWORTH CARPET CLEANING mark
(Reg. No. 2,876,532 issued Aug. 24, 2004).
Respondent registered the <dalworthcarpetcleaning.com> domain name on June 23, 2005. Respondent is using the disputed domain name to redirect Internauts to a website that contains advertisements for competing and non-competing websites.
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 established rights in the DALWORTH CARPET
CLEANING mark through registration with the USPTO. 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 <dalworthcarpetcleaning.com> domain name
contains Complainant’s mark in its entirety and affixes the generic top-level
domain (“gTLD”) “.com.” The addition of
a gTLD to a trademark is irrelevant in determining whether a domain name is
identical or confusingly similar for the purposes of Policy ¶ 4(a)(i). Accordingly, the Panel finds that the
disputed domain name is identical to Complainant’s mark under Policy ¶
4(a)(i). See 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"); see also Busy Body, Inc. v. Fitness Outlet Inc.,
D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level
domain (gTLD) name ‘.com’ is . . . without legal
significance since use of a gTLD is required of domain name registrants . . .
.").
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have rights or legitimate interests in the <dalworthcarpetcleaning.com> domain name. Complainant bears the initial burden of proof to establish that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant establishes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); 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’s failure to respond to the Complaint creates a presumption that Respondent lacks rights and legitimate interests in the <dalworthcarpetcleaning.com> domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). However, the Panel chooses to analyze the record to determine if Respondent has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
Complainant asserts that the disputed domain name resolves to a website that features advertisements for competing and non-competing websites for which Respondent presumably receives referral fees. The Panel concludes that such use does not amount to 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 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 Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
The disputed domain name was registered with added privacy protection and was listed in the WHOIS database as “Dalworthcarpetcleaning.com c/o WHOIS IDentity Shield.” Upon initiation of this action, it was revealed Respondent registered the disputed domain name under the name “Dalworth Carpet Cleaning, Inc.” Because Respondent falsely listed the registrant name as Complainant’s business name, and there is no other evidence in the record to indicate otherwise, the Panel finds that Respondent is not commonly known as the <dalworthcarpetcleaning.com> domain name. See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent is using the disputed
domain name to redirect Internauts to a website that features advertisements to
competing and non-competing websites for which Respondent presumably receives
referral fees. Additionally, the use of
the domain name that is identical to Complainant’s mark for such a use is
likely to cause confusion as to Complainant’s affiliation with or sponsorship
of the resulting website. The Panel
concludes that Respondent’s registration and use of the identical domain name
to display advertisements for various third-party websites for commercial gain
evidences bad faith pursuant to Policy ¶ 4(b)(iv). See Drs. Foster
& Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where the respondent directed Internet users seeking the
complainant’s site to its own website for commercial gain); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000)
(finding bad faith where the respondent linked the domain name to another
domain name, <iwin.com>, presumably receiving a portion of the
advertising revenue from the site by directing Internet traffic there, thus
using a domain name to attract Internet users for commercial gain).
Furthermore,
Respondent’s use of the disputed domain name to divert Internauts to competing
third party websites constitutes disruption and evidences bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett,
Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the
respondent has diverted business from the complainant to a competitor’s website
in violation of Policy ¶ 4(b)(iii)); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dalworthcarpetcleaning.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: July 26, 2006
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