START-UP TRADEMARK OPPOSITION POLICY

DECISION

Crazy Creek Products, Inc. v. Siemen's Business Services

Claim Number: FA0112000102795

PARTIES

The Complainant is Crazy Creek Products, Inc. (“Complainant”) Red Lodge, MT.  The Respondent is Siemen's Business Services, Munich, GERMANY (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <crazycreek.biz>, registered with Register.com.

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 has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel.  As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).

Complainant submitted a Complaint to the Forum electronically on December 7, 2001; the Forum received a hard copy of the Complaint on December 12, 2001.

On December 28, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 17, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).

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 5, 2002, pursuant to STOP Rule 6(b), the Forum appointed The Honorable Charles K. McCotter, Jr. (Ret.) as the single 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 STOP Rules.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Transfer of the domain name from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant has rights to its CRAZY CREEK mark.

Respondent does not have rights or legitimate interests in the <crazycreek.biz> domain name.

Respondent registered <crazycreek.biz> in bad faith.

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

Since at least June 20, 1987, Complainant has been using the CRAZY CREEK mark in commerce in relation to its now famous ground chair.  Complainant’s ground chair is currently the largest selling ground chair in the world; and due to the commercial success of its ground chair, Complainant has extended its business to include wristbands, hammocks, stuff snacks, compression snacks and a wide variety of other chairs, including those that are capable of being used in a canoe or as stadium seats.

Further, Complainant has established a presence on the Internet through its <crazycreek.com> website, through which it advertises and sells its products to consumers worldwide. 

In addition to Complainant’s use of the mark in commerce, it has applied for several trademark registrations on the Principal Register of the United States Patent and Trademark Office. 

Respondent registered the disputed domain name on November 19, 2001.  Respondent offers outdoor goods similar to those of Complainant, and both Complainant and Respondent cater their products toward backpakers, campers, and skiers.

DISCUSSION

Paragraph 15(a) of the STOP 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 STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.

Paragraph 4(a) of the STOP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be transferred:

(1) the domain name is identical 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 or is being used in bad faith.

Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.

Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form.  Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights.  The existence of the “.biz” generic top-level domain (gTLD) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.

Complainant’s Rights in the Mark

Complainant has demonstrated common law rights in the CRAZY CREEK mark through its continuous and exclusive use of the mark in relation to its ground chairs and other outdoor products.  Because the <crazycreek.biz> domain name incorporates Complainant’s CRAZY CREEK mark in its entirety and the addition of a top level like “.biz” does not distinguish the domain from Complainant’s mark, the domain name is identical to Complainant’s mark.

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

Rights or Legitimate Interests

Respondent may be found not to have any rights or legitimate interests in the disputed domain name because Respondent has not furnished a Response to this claim.  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).

There is no information, nor has Respondent provided any, to show that it has a service or trademark reflecting the CRAZY CREEK mark or the identical domain name.  Therefore, Respondent is presumed not to have any rights or legitimate interests pursuant to the STOP Policy ¶ 4(c)(i) with respect to the disputed domain name.  See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. & D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any right or interest it may possess)

Because Respondent’s domain name incorporates Complainant’s registered mark in its entirety, and because Respondent and Complainant compete in the same industry, it can be inferred that Respondent registered the disputed domain name in order to attract Complainant’s customers to its own website.   This behavior is not considered a bona fide offering of goods pursuant to STOP Policy ¶ 4 (c)(ii).  See Household Int’l, Inc. v. Cyntom Enter., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (inferring that Respondent registered the domain name <householdbank.com>, which incorporates Complainant’s HOUSEHOLD BANK mark, with hopes of attracting Complainant’s customers and thus finding no rights or legitimate interests).

There is no evidence, and Respondent has not produced any evidence, that it is commonly known by the CRAZY CREEK mark or the identical domain name.  As a result, Respondent is presumed not to have any rights or legitimate interests in the disputed domain pursuant to STOP Policy ¶ 4(c)(iii).  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use). 

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

            Registration or Use in Bad Faith

Respondent has demonstrated bad faith pursuant to STOP Policy ¶ 4(b)(iv) by registering a domain name that is likely to be falsely associated with Complainant’s business because it incorporates Complainant’s mark and because it promotes and sells products similar to those of Complainant.  See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).

Moreover, registration of a domain name incorporating Complainant’s distinct CRAZY CREEK mark reveals Respondent’s attempt to trade on the goodwill of Complainant’s mark by using it to attract Complainant’s customers to Respondent’s competing website for commercial gain. This activity is determined to be in bad faith pursuant to STOP Policy ¶ 4(b)(iv).  See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the Respondent registered the domain name <bigtex.net> to infringe on the Complainant’s good will and attract Internet users to the Respondent’s website); see also 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).

Furthermore, because Respondent and Complainant offer similar products and compete in the same industry, it can be inferred that Respondent registered a domain identical to Complainant’s mark in order to disrupt Complainant’s business.  This behavior is determined to be in bad faith according to STOP Policy ¶ 4(b)(ii).  See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the Complainant's marks suggests that the Respondent, the Complainant’s competitor, registered the names primarily for the purpose of disrupting the Complainant's business); see also Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that Respondent registered the domain name in question to disrupt the business of the Complainant, a competitor of the Respondent).

Finally, at the time of registration, Respondent is presumed to have had actual or at least constructive knowledge of Complainant and its distinctive mark as they are both competitors in the same industry.  Respondent’s knowledge at the time of registration indicates its bad faith pursuant to STOP Policy ¶ 4(b)(iii).  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration)

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

DECISION

Having established all three elements required under the Start-Up Trademark Opposition      Policy, the Panel concludes that relief shall be hereby granted.

Accordingly, it is Ordered that the <crazycreek.biz> domain name be transferred from Respondent to Complainant and subsequent challenges under the STOP Policy against the domain name shall not be permitted.

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

Dated: February 12, 2002

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