WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Moen Incorporated v. Belize Domain WHOIS Service Lt
Case No. D2007-1253
1. The Parties
The Complainant is Moen Incorporated, North Olmsted, Ohio, United States of America, represented by Calfee, Halter & Griswold, United States of America.
The Respondent is Belize Domain WHOIS Service Lt, City of Belmopan, Belize.
2. The Domain Name and Registrar
The disputed domain name is registered with Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 23, 2007. On August 28, 2007, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On August 28, 2007, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 7, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 27, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 2, 2007.
The Center appointed Daniel J. Gervais as the sole panelist in this matter on October 10, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant operates inter alia a division known as Cleveland Faucet Group, which generated sales of $12.4 million in 2006 (compared to $846 million for the Complainant as a whole). The CLEVELAND FAUCET GROUP mark has been registered to the Complainant with the United States of America PTO since 2002 and also received a number of additional related registrations since that date in connection with faucet design, manufacturing and service.
5. Parties’ Contentions
A. Complainant
The Complainant alleges that the disputed domain name is identical or confusingly similar to the registered mark CLEVELAND FAUCET GROUP, in which it has rights. The Complainant asserts that the Respondent, who failed to respond to emails sent by a representative of the Complainant, has no rights or legitimate interests in the domain name, not being licensed or otherwise authorized by the Complainant to use the CLEVELAND FACUCET GROUP mark and having neither used not made demonstrable preparations to use the domain in relation with a bona fide offering of goods or services. The Complainant further asserts that the Respondent is not commonly known by the domain name and is not making a legitimate noncommercial or fair use of the domain name.
The domain name is “parked” and resolves to a page containing a series of sponsored links. The Complainant submits that this intentional attempt to attract Internet users by creating a likelihood of confusion with the Complainant’s mark constitutes bad faith use and registration under the Policy.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the Domain Name, the Complainant must prove that each of the three following elements are satisfied:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section A);
(ii) The Respondent has no rights or legitimate interests in respect of the domain name (see below, section B); and
(iii) The domain name has been registered and is being used in bad faith (see below, section C).
Paragraph 4(a) in fine of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate.
A. Identical or Confusingly Similar
This question raises two issues: (1) does the Complainant have rights in a trademark or service mark; and (2) is the domain name identical or confusingly similar to such trademark or service mark.
The record shows that the Complainant owns several registrations of the CLEVELAND FAUCET GROUP and related trademarks. The Panel recognizes that the Complainant has rights in the mark CLEVELAND FAUCET GROUP for the purpose of this administrative proceeding.
It is also clear that the Domain Name is confusingly similar with the Complainant’s trademark. The only difference between the Complainant’s mark and the domain name is the addition of “.com”, which is a generic top-level domain reference. The domain name, which is composed of the Complainant’s mark with the addition of a generic top-level domain (gTLD) reference, which is necessary for a domain name to be operational, is functionally identical to the Complainant’s mark. See Pomellato S.p.A v. Richard Tonetti,WIPO Case No. D2000-0493, Telecom Personal, S.A., v. NAMEZERO.COM, Inc,WIPO Case No. D2001-0015, Soci�t� G�n�rale and Fimat International Banque v. Lebanon Index/La France DN and Elie Khouri,WIPO Case No. D2002-0760.
The Panel thus finds for the Complainant on this first element.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [the Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [the Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
There is no evidence of any of the above. The Complainant positively asserts the opposite.
In view of the use of the disputed domain name (see finding under the third element), and in the absence of a rebuttal by the Respondent, the Panel thus finds for the Complainant on this second point.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:
(i) Circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website 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 the Respondent’s website or location or of a product on the Respondent’s website or location.
The evidence of bad faith under paragraph 4(b)(iv) is manifestly present. The webpage to which the domain name resolves contains a number of sponsored links, inserted presumably to generate click-through fees. It is quite unlikely that the Respondent chose to include the exact trademark used by the Complainant in a domain name by accident and there is indeed little room to doubt that the registrant knew the Complainant’s CLEVELAND FAUCET GROUP mark and chose to register it to attract Internet users to its webpage by creating a likelihood of confusion with said mark, presumably hoping to profit for the sponsored links. See Parrot S.A. v. Whois Service, Belize Domain WHOIS Service,WIPO Case No. D2007-0779.
The Panel finds for the Complainant on the third element.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Daniel J. Gervais
Sole Panelist
Dated: October 24, 2007
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