Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Cream Pie Club, Woodland Hills, CA, USA ("Complainant"). The Respondent is Brittany Halford, Manchester, England, GB ("Respondent").

The domain name at issue is "CREAMPIES.COM", registered with Network Solutions Inc ("NSI").

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.

Judge Harold Kalina (Ret.) as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 07/11/2000; The Forum received a hard copy of the Complaint on 07/11/2000.

On 07/17/2000, NSI confirmed by e-mail to The Forum that the domain name "CREAMPIES.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On 07/18/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 08/07/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by e-mail.

On 08/10/2000, 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 August 10, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed Judge Harold Kalina (Ret.) 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 name be transferred from the Respondent to the Complainant.

The Respondent has submitted no response in this matter.

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.

As a result of the Respondent’s failure to respond, all reasonable inferences of fact in the Complaint will be deemed true. See Banco General, S.A. v Webmaster Ams/Uk Billing (Domain for Sale), FA 94993 (Nat. Arb. Forum July 20, 2000).

The Respondent’s domain name is confusingly similar to the Complainant’s trademark. The addition of an "s" to the end of the Complainant’s mark does not prevent the likelihood of confusion caused by the use of the remaining identical mark. The two domain names are similar in sound, appearance, and connotation. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that the domain names <beanybaby.com>, <beaniesbabies.com>, <beanybabies.com> are confusingly similar to Complainant’s mark "Beanie Babies"). The Respondent’s use of the domain name for identical and competing services makes the likelihood of confusion even greater.

The Respondent has no rights or legitimate interests in the domain name in question.

The Respondent is not commonly known by any mark containing the term CREAM PIES. Policy ¶ 4.c.(ii). The Respondent’s website bears the prominent mark "Brittany’s Home Page." The Respondent’s website makes no use of the term CREAM PIES.

The Respondent is not using the domain name to offer bona fide goods or services or for a legitimate noncommercial or fair use. Policy ¶ 4.c.(i), (iii). The Respondent is using the domain name to direct Internet traffic to its competing website.

The Respondent registered and is using the domain name in question in bad faith.

The Respondent offered the domain name for sale to the Complainant for $125,000. Registering a domain name for the purpose of selling it to the owner of a trademark for valuable consideration in excess of out of pocket expenses is evidence of bad faith. See The Step2 Co. v. Softastic.com Corp., D2000-0393 (WIPO June 26, 2000) (finding that the Respondent’s attempt to sell the domain name in question on <greatdomains.com>, a domain name auction site, for $100,000 constitutes bad faith); Hitachi, Ltd. v. Fortune Int’l Dev. Ent, D2000-0412 (WIPO July 2, 2000) (finding Respondent’s offer to sell the domain name for $100,000 constitutes bad faith).

When Internet users enter the said domain name, they are transported to the Respondent’s website. The Respondent is using the domain name in question to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, or affiliation of the Respondent’s website. Policy ¶ 4.b.(iv). This is evidence of registration and use in bad faith. See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where Respondent’s sites pass users through to Respondent’s competing business).

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 name, "CREAMPIES.COM" be transferred from the Respondent to the Complainant.

Judge Harold Kalina (Ret.)