Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Luck's Music Library, Madison Heights, MI, USA ("Complainant") represented by Joan Lowenstein. The Respondent is Stellar Artist Management ("Respondent").

The domain names at issue are "lucksmusiclibrary.com" and "lucksmusic.com" registered with Network Solutions.

The Panelist 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 the panelist in this proceeding.

Hon. James A. Carmody, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on September 22, 2000; The Forum received a hard copy of the Complaint on September 22, 2000.

On 9/25/00, Network Solutions confirmed by e-mail to the Forum that the domain names "lucksmusiclibrary.com" and "lucksmusic.com" are registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 4.0;5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On October 4, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 24, 2000 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@lucksmusiclibrary.com and postmaster@lucksmusic.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 October 27, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed the Hon. James A. Carmody 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 Uniform 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 the Respondent.

The Complainant requests that the domain names be transferred from the Respondent to the Complainant.

A. Complainant

The Complainant contends that the Respondent’s use of the domain names in question is not legitimate and that the domain names were registered to intentionally attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation or endorsement of Respondent’s web site and the services he provides. The Complainant also contends that the domain names in question are identical to its common law marks LUCK’S, LUCK’S MUSIC and LUCK’S MUSIC LIBRARY

B. Respondent

The Respondent has made no submissions.

Paragraph 15(a) of the Rules instructs the Panel to:

As such, the Panel will base its findings and conclusions on the Complaint, UDRP and other legal precedent and reasonable assertions of law. The Panel concludes that the Respondent does not deny the assertions set forth in the Complainant.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("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.

The domain names in question are confusingly similar and identical to the Complainant’s common law marks. See Bibbero Systems, Inc. v. Tseu & Assoc., FA 94416 (finding common law rights in the mark BIBBERO as the Complainant, Bibbero Systems, Inc had developed brand name recognition with this term by which the Complainant is commonly known).

The Respondent has not demonstrated any rights to the domain names in question. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has not demonstrated any rights or legitimate interests in the domain name "TWILIGHT-ZONE.NET" since Complainant had been using the mark TWILIGHT ZONE since 1959). The Panel concludes that the Respondent cannot claim rights to the domain names under any circumstance set forth under Policy ¶ 4.c.

The domain names in question contain marks that are obviously connected with the Complainant. Use of the Complainant’s family and business name by any other person would suggest opportunistic bad faith. See America Online Inc. v. Shenzhen JZT Computer Software Co. Ltd, D2000-0809 (WIPO Sept. 6, 2000) (finding that "gameicq.com" and "gameicq.net" are obviously connected with services provided with the world-wide business of ICQ and the very use by someone with no connection with the product suggests opportunistic bad faith).

Further, the Respondent has engaged in bad faith use and registration by linking the domain name to a website that is affiliated with its music-related services. Intentionally attempting to attract, for commercial gain, Internet users to a web site by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation or endorsement of Respondent’s web is evidence of bad faith based on Policy ¶ 4.b.(iv). See Daniel C. Marino, Jr. v. Video Images Productions, D2000-0598 (WIPO Aug. 2, 2000) (finding bad faith where the Respondent linked the domain name <danmarino.com> to a site administered and operated by Respondents which provides a variety of sports, entertainment, trivia and other special programs and includes links to vendors of Dan Marino related products). Given the totality of circumstances, the Panel concludes that the Respondent engaged in bad faith behavior as described in Policy ¶ 4.a.(iii).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain names, "lucksmusiclibrary.com" and "lucksmusic.com", be transferred from the Respondent to the Complainant.