DECISION

Lynnhaven Homes Inc. v. Relocation Director Inc.

Claim Number: FA0210000128233

PARTIES

Complainant is Lynnhaven Homes Inc., Virginia Beach, VA (“Complainant”) represented by Kevin W Grierson, of Willcox & Savage P.C.  Respondent is Relocation Director Inc., Glendora, CA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lynnhavenhomes.com>, registered with Dotster.com, 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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on October 16, 2002; the Forum received a hard copy of the Complaint on October 18, 2002.

On October 20, 2002, Dotster.com, Inc. confirmed by e-mail to the Forum that the domain name <lynnhavenhomes.com> is registered with Dotster.com, Inc. and that Respondent is the current registrant of the name.  Dotster.com, Inc. has verified that Respondent is bound by the Dotster.com, 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 October 21, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 11, 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@lynnhavenhomes.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 9, 2002, pursuant to Complainant’s request to have the dispute decided by a single-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 Respondent.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

1. Respondent’s <lynnhavenhomes.com> domain name is identical to Complainant’s lynnhaven Homes mark.

2. Respondent does not have rights to or legitimate interests in the <lynnhavenhomes.com> domain name.

3. Respondent registered and used the <lynnhavenhomes.com> domain name in bad faith.

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant is a Virginia based corporation, which produces home building services in the Richmond and Tidewater areas. Complainant has formally been incorporated since May of 1992, and has been using the mark LYNNHAVEN HOMES since February of the same year. Since Complainant’s inception, it has expended approximately one million dollars in advertising the mark LYNNHAVEN HOMES. Complainant has a vested interest in the mark and has accumulated substantial good will in the mark.

Respondent registered the domain name on March 9, 2000. Internet users accessing the <lynnhavenhomes.com> site are redirected to another site, <relocationsdirector.com>, also maintained and operated by Respondent. Moreover, when Internet users access the disputed domain name site, a pop-up box appears proposing the sale of the domain name registration to interested parties.

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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(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.

Identical and/or Confusingly Similar

One can gain common law rights within a name by maintaining continuous use of a mark for a substantial period of time. Complainant’s accepted unchallenged assertions plainly state that through continuous use and advertisement, it has acquired common law rights to the LYNNHAVEN HOMES mark. See Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of the said name [<keppelbank.com>] in connection with its banking business, it has acquired rights under the common law); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established).

Respondent incorporates Complainant’s entire mark in its domain name, therefore

Respondent’s <lynnhavenhomes.com> domain name is identical to Complainant’s LYNNHAVEN HOMES mark. All that must be shown to prove that the disputed domain name is identical to the mark is that the domain name incorporates the entire mark of Complainant and there are no distinct changes.  See World Wrestling Fed’n Entm’t, Inc. v. Rapuano, DTV 2001-0010 (WIPO May 23, 2001) (“The disputed domain names <worldwrestlingfederation.tv>, <undertaker.tv>, <therock.tv>, <stonecold.tv> and <austin316.tv> are essentially identical to Complainant’s marks [WORLD WRESTLING FEDERATION, UNDERTAKER, AUSTIN 3:16, THE ROCK, and STONE COLD]”); see also Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark).

There is a presumption that when Internet users are trying to find a company, they merely use the mark followed by a general top-level domain, such as “.com.” See Sporty's Farm L.L.C. vs. Sportsman's Market, Inc., [2000] USCA2 33; 202 F.3d 489 (2d Cir. 2000), cert. denied, 530 U.S. 1262 (2000) ("For consumers to buy things or gather information on the Internet, they need an easy way to find particular companies or brand names. The most common method of locating an unknown domain name is simply to type in the company name or logo with the suffix .com"); see also Entrepreneur Media, Inc. v. Smith, [2002] USCA9 115; 279 F.3d 1135, 1146 (9th Cir. Feb. 11, 2002) (“Internet users searching for a company’s [w]ebsite . . . assume, as a rule of thumb, that the domain name of a particular company will be the company name [or trademark] followed by ‘.com’”).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has thus been satisfied.

Rights or Legitimate Interests

Respondent has not submitted a reply to Complainant’s allegations, thereby permitting the Panel to conclude that all reasonable inferences made by Complainant are true and accurate unless there is evidence that is clearly contradictory.  Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true);  Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).  There is no evidence that contradicts the allegations of Complainant.  Complainant has presented evidence that substantiates its claim that Respondent has no legitimate rights or interests in the contested domain name.

Respondent deliberately registered the disputed domain name to capitalize on Complainant’s commonly known mark, which designates Complainant as a producer of home building services.  Moreover, it used Complainant’s mark to divert Internet consumers to another one of its own sites, <relocationdirector.com>. This site is commercial in nature, and unfairly diverts Internet traffic to increase business at <relocationdirector.com>. There are no rights or legitimate interests when one benefits from the unauthorized use of another’s mark by diverting Internet traffic to other websites. Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own website by using Complainant’s trademarks). Respondent has not established under either Policy ¶ 4(c)(i) or 4(c)(iii) rights or legitimate interests and conversely, Complainant has shown that Respondent would be unable to do so even if a Response had been filed.

There has been no evidence submitted to indicate that Respondent has a substantial affiliation with, or is known by the <lynnhavenhomes.com> name. On the other hand, Complainant has established itself as having legitimate rights and a vested interest in the mark LYNNHAVEN HOMES.  Moreover, the Complainant has had rights in the mark that precede the registration of the disputed domain name. Since Respondent has not come forward with a rationalization for its use of Complainant’s mark, and uses an identical domain name to direct users to another site, it can be deduced that Respondent has no rights to the domain name according to Policy ¶ 4(c)(ii). Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question); Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use). Respondent has not established under Policy ¶ 4(c)(ii) that it is commonly known by <lynnhavenhomes.com>, and alternatively, Complainant has shown that Respondent would be unable to do so even if a Response had been filed.

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has thus been satisfied.

Registration and Use in Bad Faith

Respondent registered and is using the disputed domain name in bad faith. Respondent has placed a “for sale” pop-up advertisement on the website. It is evidence of bad faith registration and use under Policy ¶ 4(b)(i) when a party purposely obtains the rights in a domain name in order to re-sell the registration rights of the domain name for a financial gain. See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale); Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).

Respondent has prevented Complainant from reflecting the mark for which it has a vested interest. Complainant provided evidence to show that Respondent has made a pattern out of registering scores of domain names that are similar or identical to the marks of realty companies and homebuilders across the United States. Each of these domain names redirect users to <relocationdirector.com>, and all are being advertised as “for sale.” The coupling of intent to prevent a rightful owner of a mark from reflecting the mark, with a pattern of such conduct is an indication of bad faith under ¶ 4(b)(ii). See Pep Boys Manny, Moe, & Jack v. E-Commerce Today, Ltd., AF-0145 (eResolution May 3, 2000) (finding that, where Respondent registered many domain names, held them hostage, and prevented the owners from using them, the behavior constituted bad faith); see also Gamesville.com, Inc. v. Zuccarini, FA 95294 (Nat. Arb. Forum Aug. 30, 2000) (finding that Respondent engaged in a pattern of conduct of registering domain names to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, which is evidence of registration and use in bad faith).

Complainant also suggests that Respondent has used the domain name in bad faith due to the fact that Respondent should be considered a competitor for all intents and purposes. The definition of competitor should be construed liberally as someone who simply acts in opposition to Complainant. See Mission Kwa Sizabantu v. Rost, D2000-0279 (WIPO June 7,2000) (defining “competitor” as "…one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”). As stated before, the disputed domain name redirects Internet traffic to <relocationdirector.com>. At the top of the page are several menus available, the default choice being “new homes.” If an Internet user tries to find new homes in Virginia, a new web page opens and purports to show “Featured Virginia Home Builders.” Complainant is not featured on this list, although Complainant’s competitors are. When Respondent intentionally diverts Internet traffic to competitors of Complainant, it is therefore diverting business, and Respondent is engaging in bad faith under Policy ¶ 4(b)(iii). 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); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has diverted business from Complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).

As stated previously, Complainant is a well-known new homebuilder and its name and service mark are know through extensive marketing and advertising in the area. Respondent has capitalized on Complainant’s mark by registering and using a domain name is identical to Complainant’s mark. According to Policy ¶ 4(b)(iv), evidence of bad faith registration and use is shown when registration of a domain name occurs in order to utilize another’s established reputation by attracting Internet users to a website, for commercial gain. Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent); Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain).

Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has thus been satisfied.

DECISION

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

Accordingly, it is ordered that the domain name <lynnhavenhomes.com> be TRANSFERRED from Respondent to Complainant.

John J. Upchurch, Panelist

Dated: December 12, 2002

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