Generic Top Level Domain Name (gTLD) Decisions

Complainant is Phoenix Gold International, Inc. , Portland, OR, USA ("Complainant") represented by James E. Geringer, Esg., Klarquist, Sparkman, Campbell, Leigh & Whinston, LLP. Respondent is Stephen Noton, Saskatoon, SK, Canada ("Respondent").

The domain names at issue are "pheonixgold.com", "pheonixgoldcorp.com" registered with Tucows.com, Inc.

The Panelist certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as the panelist in this proceeding.

Honorable Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("the Forum") electronically on November 10, 2000; The Forum received a hard copy of the Complaint on November 8, 2000.

On November 17, 2000, Tucows.com, Inc. confirmed by e-mail to the Forum that the domain names "pheonixgold.com", "pheonixgoldcorp.com" are registered with Tucows.com, Inc. and that Respondent is the current registrant of the name. Tucows.com, Inc. has verified that Respondent is bound by the Tucows.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On November 17, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 7, 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@pheonixgold.com, pheonixgoldcorp.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 December 14, 2000, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Honorable Carolyn Marks Johnson 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 Respondent.

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

A. Complainant asserts that the domain names at issue are substantially identical to Complainant’s famous mark, in which Complainant has incontestable rights. The primary difference between Complainant’s mark and the domain names in question is two transposed letters that create a misspelling--from Phoenix to Pheonix--which makes the domain names at issue confusingly similar to Complainant’s mark.

Complainant also contends Respondent has no rights or legitimate interests in the domain names in question and that Respondent has demonstrated bad faith by registering the domain names to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with Complainant’s mark.

B. Respondent failed to submit a response in this matter.

Complainant, Phoenix Gold International Inc., maintains its principle place of business in Portland, Oregon. Complainant has been in business since the mid 1980s and registered its trademark in the United States as well as in various countries throughout the world. Complainant has become a popular global source for audio and video related goods and services.

Respondent’s sole use of the registered domain names at issue has been to direct Internet traffic to Complainant’s competitor, Rockford Fosgate, which markets and sells comparable products using its web site.

The Rules for Uniform Domain Name Dispute Resolution Policy ("ICANN Rules") state the following with regard to default cases:

In this case, Respondent has not submitted a response, and therefore this Panelist may infer, for the purposes of this Decision, that the averments in the complaint are true. See 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 ICANN Uniform Domain Name Dispute Policy ("Policy") requires that a 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) 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.

For the purposes of this element of the ICANN Policy, Complainant must demonstrate two things, that it has rights in a trademark or service mark, and that the domain names at issue are identical to or confusingly similar to that mark. The evidence indicates that Complainant has demonstrated both elements.

Complainant’s rights are evidenced by registered trademark, PHOENIX GOLD. The Respondent’s domain names are confusingly similar to Complainant’s mark. Policy ¶ 4.a.(i). The only difference between the Complainant’s mark and the domain names at issue is the common misspelling of the city "Pheonix." See Bank of American Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark "Bank of America" because it "takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet"); see also Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with a zero in place of the letter O, is confusingly similar to Complainant’s mark by exploiting upon likely mistakes by users when entering the URL address).

The Panel finds that Complainant met its burden of showing that the domain names in issue are identical to and confusingly similar to Complainant’s mark.

The ICANN Policy provides that Respondent may demonstrate rights to or a legitimate interest in a domain name by providing evidence of any of the following:

Respondent asserted no rights or legitimate interests in the domain names at issue. Respondent is not commonly known by the domain names, nor is Respondent using the domain names in connection with a bona fide offering of goods, services, or for a legitimate noncommercial or fair use. ICANN Rules, Policy ¶ 4.c.(i), (ii) and (iii).

Accordingly, Respondent’s failure to show evidence sufficient to rebut Complainant’s allegations, entitles the Panel to conclude that Respondent has no such rights or legitimate interests in regard to the domain names in question. See Woolworths plc. v. David Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that the burden of proof lies with Respondent to demonstrate that he has rights or legitimate interests).

The Panel finds that Respondent has no rights to or legitimate interests in the domain names at issue.

The Panel finds that Complainant met the third prong of the test that requires Complainant to show that Respondent acted in bad faith. Respondent’s conduct supports a finding that Respondent acted intentionally to attempt to attract Internet users to its own web site, primarily for the purpose of commercial gain via a likelihood of confusion with the Complainant’s famous mark. This is evidence of bad faith. Policy ¶ 4.b.(iv). See Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO April 22, 2000) (finding bad faith where the Respondent attempted to attract customers to its web site, <efitnesswholesale.com>, and created confusion by offering similar products for sale as the Complainant); see also Luck's Music Library v. Stellar Artist Management, FA95650 (Nat. Arb. Forum Oct. 30, 2000) (finding Respondent had engaged in bad faith use and registration by linking the domain name to a web site that is affiliated with Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks).

Moreover, the record supports a finding that Respondent registered the domain names in question primarily for the purpose of disrupting Complainant’s business, which is in competition with Respondent, because he was aware of the Complainant’s famous mark prior to registration. ICANN Policy ¶ 4.b.(iii). See Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (finding that the fact "that the Respondent chose to register a well known mark to which he has no connections or rights indicates that he was in bad faith when registering the domain name at issue")

The Panel finds that Respondent registered and used the domain names in issue in bad faith.

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted.

Accordingly, it is Ordered that the domain names pheonixgold.com and pheonixgoldcorp.com be transferred from Respondent to Complainant.