DECISION

Courage c/o Church of St. John the Baptist v. Andrej Kuravsev

Claim Number: FA0206000114622

PARTIES

Complainant is Courage c/o Church of St. John the Baptist, New York, NY, USA (“Complainant”) represented by Christopher Garvey, of Nolte, Nolte & Hunter.  Respondent is Andrej Kuravsev, Moscow, RUSSIA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <couragerc.org>, registered with eNom, Inc.

PANEL

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

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 19, 2002; the Forum received a hard copy of the Complaint on June 21, 2002.

On June 24, 2002, eNom, Inc. confirmed by e-mail to the Forum that the domain name <couragerc.org> is registered with eNom, Inc. and that Respondent is the current registrant of the name.  eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 June 24, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 15, 2002 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@couragerc.org 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 July 23, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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 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 Respondent.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

The <couragerc.org> domain name is confusingly similar to Complainant's COURAGE mark.

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

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant is an organization that promotes chastity in accordance with the Roman Catholic Church’s teachings on homosexuality. Complainant has used the COURAGE service mark since 1981 and registered the mark with the United States Patent and Trademark Office on September 14, 1993 as Registration Number 1,793,097.  Complainant also owns a service mark in Canada (Reg. No. 435800), registered on November 18, 1994.

Complainant used the <couragerc.org> domain name from November 1, 2000 to October 31, 2001 to promote its ministry and support groups.  Complainant still holds the registration for <couragerc.net>.  The <couragerc.org> domain name lapsed because Complainant’s registration company failed to inform Complainant’s webmaster about the pending expiration.

Respondent registered the disputed domain name on November 1, 2001 after Complainant accidentally let the domain name expire.  Respondent is using the disputed domain name in order to divert Internet users to <how-to-find-porn.com>.  Respondent has offered the domain name for sale to Complainant for $4,999 and $1,499, both of which are in excess of Respondent’s out-of-pocket expenses.

DISCUSSION

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 and draw such inferences it considers appropriate pursuant to paragraph 14(b) 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; and

(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.

Identical and/or Confusingly Similar

Complainant has established through registration and continuous use that it has rights in its COURAGE mark.  Respondent’s domain name is confusingly similar to Complainant’s mark because it incorporates Complainant’s entire COURAGE mark and merely adds the letters “RC,” which is a common abbreviation for Roman Catholic.  The addition of terms or letters that describe Complainant to Complainant’s mark in a domain name is not enough to create a distinct mark capable of overcoming a claim of confusing similarity.  See Space Imaging LLC v. Brownwell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the Respondent’s domain name combines the Complainant’s mark with a generic term that has an obvious relationship to the Complainant’s business); see also Marriott Int’l v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the Respondent’s domain name <marriott-hotel.com> is confusingly similar to Complainant’s MARRIOTT mark). 

Furthermore, the addition of a generic top-level domain such as “.org” is irrelevant when considering whether a domain is identical or confusingly similar.  See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response.  Therefore it is presumed that Respondent has no rights or legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  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”).

Respondent registered the disputed domain name after Complainant let its own registration expire.  It can be inferred that the Respondent had knowledge that the disputed domain name previously belonged to Complainant, and therefore that Internet user confusion would result from Respondent's use.  See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interest in the domain name).

Respondent is using a domain name that is confusingly similar to Complainant’s COURAGE mark in order to divert Internet users interested in Complainant to <how-to-find-porn.com>.  The use of a confusingly similar domain name to divert Internet users to a pornographic website is not considered to be a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Nat’l Football League Prop., Inc. v. One Sex Entm’t Co., D2000-0118 (WIPO Apr. 17, 2000) (finding that the Respondent had no rights or legitimate interests in the domain names <chargergirls.com> and <chargergirls.net> where the Respondent linked these domain names to its pornographic website); see also MatchNet plc. v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that it is not a bona fide offering of goods or services to use a domain name for commercial gain by attracting Internet users to third party sites offering sexually explicit and pornographic material where such use is calculated to mislead consumers and to tarnish the Complainant’s mark).

Respondent has not come forward with any evidence to prove that it is commonly known by any other name than Andrej Kuravsev.  Therefore, Respondent has not established that it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii) because there is no evidence that Respondent is commonly known as <couragerc.org> or COURAGERC.  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is using the confusingly similar <couragerc.org> domain name to divert Internet users to an adult content website entitled <how-to-find-porn.com>.  This conduct is evidence of bad faith use under Policy ¶ 4(a)(iii).  See MatchNet plc. v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that association of confusingly similar domain name with pornographic website can constitute bad faith); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith); see also CCA Indus., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26, 2000) (finding that “this association with a pornographic web site can itself constitute bad faith”).

Based on the fact that Respondent registered the disputed domain name immediately after Complainant failed to renew its registration it can be inferred that Respondent had knowledge of Complainant’s rights in the COURAGE mark.  Respondent’s registration of the <couragerc.org> domain name despite this notice is evidence of bad faith registration under Policy ¶ 4(a)(iii).  See Entrepreneur Media, Inc. v. Smith, [2002] USCA9 115; 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse"); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).

Respondent has attempted to sell the disputed domain name to Complainant for a price that is in excess of its out-of-pocket expenses.  Registration of a domain name for the purpose of selling it back to Complainant for profit is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i).  See Little Six, Inc v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith); see also World Wrestling Fed’n Entmt., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out of pocket costs).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

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

Accordingly, it is Ordered that the domain name <couragerc.org> be transferred from Respondent to Complainant.

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated: July 31, 2002

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