Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Access Resource Services d/b/a Psychic Readers Network d/b/a PRN, Fort Lauderdale, FL, USA ("Complainant") represented by Sean Moynihan, of Klein, Zelman, Rothermel & Dichter LLP. The Respondent is Billy Tide d/b/a Psychic Hotline, West Palm Beach, FL, USA ("Respondent").

The domain name at issue is "psychicreadersnetwork.com" registered with Network Solutions.

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

John J. Upchurch as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 18, 2000; the Forum received a hard copy of the Complaint on December 18, 2000.

On December 27, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name "psychicreadersnetwork.com" is 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 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On January 2, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 22, 2001 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@psychicreadersnetwork.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 February 2, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed John J. Upchurch 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 Rules for Uniform Domain Name Dispute Resolution Policy (the "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.

A. Complainant

Complainant contends Respondent’s domain name, psychicreadersnetwork.com, is identical to its well-established mark. In addition, Respondent has no rights or legitimate interests in respect to the domain name at issue. And finally, Respondent registered the domain primarily for the purpose of disrupting Complainant’s business, which shows Respondent’s bad faith.

B. Respondent

Respondent has not submitted a response in this matter.

Complainant, Access Resource Services d/b/a Psychic Readers Network, is a Florida corporation that has used its mark "Psychic Readers Network" in conjunction with an internationally known psychic service since 1993. Complainant filed its mark with the USPTO in 1996 and although the registration of the mark was administratively dissolved (officially "abandoned") in 1998, Complainant has maintained its common law trademark rights by using its mark continuously in commerce before, during and after the time the mark was registered.

Respondent, Billy Tide d/b/a Psychic Hotline, offers the same types of services as Complainant. In addition, Respondent is using the domain name in connection with similar psychic services. Currently, in addition to this dispute, Respondent and Complainant are entangled in legal proceedings involving both civil as well as criminal claims.

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."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the 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.

Under the Policy, Complainant must demonstrate that it has rights in the mark, and that the domain name at issue is identical or confusingly similar to that mark.

Accordingly, Complainant has demonstrated it has common law rights to the mark, PSYCHIC READERS NETWORK. See Smart Design LLC v. Carolyn Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy 4(a)(i) does not require Complainant to demonstrate ‘exclusive rights,’ but only that complainant has a bona fide basis for making the complaint in the first place).

Respondent’s domain name, psychicreadersnetwork.com, is found to be identical to Complainant’s well-established mark. See Internet America Inc v. Internet America, D2000-0355 (WIPO June 19, 2000) (finding that the domain name <internetamerica.com> is identical to Complainant’s mark); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding that Respondent’s domain name <charlesjourdan.com> is identical to Complainant’s marks).

Complainant has shown Respondent is not commonly known by the domain name, nor is Respondent using the domain name in connection with a bona fide offering of goods, services or for a legitimate noncommercial or fair use. Policy ¶ 4(c)(i), (ii) and (iii). See America Online, Inc. v. Xianfeng Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that "[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business).

Respondent asserted no rights or legitimate interests in the domain name at issue. Accordingly, Respondent’s failure to show evidence sufficient to rebut Complainant’s assertions, entitles the Panel to conclude that Respondent has no such rights or legitimate interests in regard to the domain name at issue. See Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names and no use of the domain names has been proved).

Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the domain name at issue.

Complainant has shown Respondent registered the domain name at issue with the intent to create a likelihood of confusion with Complainant’s well-established mark, as to the source, sponsorship, affiliation, or endorsement of its web site. See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the Complainant’s well known marks, thus creating a likelihood of confusion strictly for commercial gain).

In addition, Respondent had to have been aware of Complainant’s mark prior to registering the domain name at issue because Respondent and Complainant are vigorous competitors, which also demonstrates Respondent’s bad faith. See Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that the Respondent demonstrated bad faith where the Respondent was aware of the Complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names); see also 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").

Finally, Respondent registered the domain name at issue primarily for the purpose of disrupting Complainant’s business. See Hewlett Packard Co. v. Full System, FA 94637 (Nat. Arb. Forum May 22, 2000) (holding that Respondent’s failure to offer any evidence permits the inference that the use of the Complainant’s mark in connection with the Respondent’s web site is misleading and Respondent is intentionally diverting business from the Complainant).

The Panel finds Respondent registered and used the domain name at 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 name, psychicreadersnetwork.com, be transferred from Respondent to Complainant.