WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Argy, Wiltse & Robinson. P.C. v. Domain Administrator, TRFCN Inc. Case No. D2008-1320 1. The Parties
Complainant is Argy, Wiltse & Robinson. P.C., McLean, Virginia United States of America, represented by Squire, Sanders & Dempsey, LLP, United States of America.
Respondent is Domain Administrator, TRFCN Inc., Michigan, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 29, 2008. On September 1, 2008, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On September 5, 2008, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On September 8, 2008, the Center issued a Complaint Deficiency Notification indicating that the Complaint was not submitted in electronic format as required by the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), paragraph 3(b). On September 8, 2008, Complainant submitted an electronic copy of the Complaint. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “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 Respondent of the Complaint, and the proceedings commenced on September 9, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was September 29, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 30, 2008.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on October 10, 2008. 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
Complainant claims ownership of the names and marks ARGY and ARGY, WILTSE & ROBINSON, P.C. Complainant is ranked among the top 100 certified public accounting firms in the United States of America, and is recognized in publications including, INSIDE Public Accounting, Accounting Today, Forbes, Washington Post, Washington Business Journal, INC and Florida Business Journal. Complainant has used the names ARGY and ARGY, WILTSE & ROBINSON, P.C. since at least 1991. Complainant's building signage consists of the word ARGY alone.
Respondent registered the disputed domain name on May 11, 2003. 5. Parties' Contentions A. Complainant
Complainant contends that the domain name registered by Respondent is identical to Complainant's common law mark ARGY and is confusingly similar to Complainant's mark ARGY, WILTSE & ROBINSON, P.C. Complainant further contends that Respondent has no rights or legitimate interests in respect of the domain name, does not operate a business under the mark ARGY or any variation thereof, and has not made any demonstrable preparations to use the domain name. Complainant contends that the domain name was registered and used in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
In order to succeed in their claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the domain name; and
(iii) the domain name has been registered and 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”. A. Identical or Confusingly Similar
Complainant has demonstrated that it own common law trademark rights in the mark ARGY and ARGY, WILTSE & ROBINSON, P.C. The suffix “.com” should be disregarded for the purpose of comparison under this criterion of the Policy.
Accordingly, the Panel finds that Complainant has satisfied this criterion. B. Rights or Legitimate Interests
Respondent is not affiliated or related to Complainant in any way, nor is Respondent licensed by Complainant or otherwise authorized to use the ARGY name or trademark.
There is no evidence in the record to indicate that Respondent is generally known by the domain name. To the best of Complainant's knowledge, during the five year period since Respondent registered the domain name, Respondent has not made any demonstrable preparations to use the domain name for an active web site or as a trade name and mark. Respondent has only used the domain name as a place holder and director for restaurant menus in Ann Arbor. This appears to be an attempt to create the impression of use of a domain name while truly creating no demonstrable use thereof.
Respondent is not using the domain name in a bona fide manner. The domain name resolves to a click-through-revenue or “pay per click” website linking to a directory of various restaurant menus. There is nothing to indicate that Respondent has any genuine rights or legitimate interests in the disputed domain name.
The Panel finds that Respondent has no rights or legitimate interests with regard to the domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:
(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of Respondent's website or location of a product or service on Respondent's website or location.
Complainant has shown that the domain name is being used for commercial gain to attract Internet users to Respondent's website based on a likelihood of confusion with Complainant's ARGY mark. Complainant's prior use of the ARGY mark for many years prior to Respondent's registration of the domain name leads to the conclusion that Respondent registered and is using the domain name with actual knowledge of Complainant's rights.
Accordingly, the Panel finds the disputed domain name to be registered and used in bad faith. 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 Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Dated: October 27, 2008
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