DECISION

Tag & Associates v. Focus F, Ltd.

Claim Number: FA0201000104188

PARTIES

Complainant is Cindy Leung Tag & Associates, Toronto, Ontario, CANADA (“Complainant”) represented by Cindy Leung, of Tag & Associates.  Respondent is Craig Williamson Focus F, Ltd, Henderson, NV (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <ibingoclub.com>, registered with Network Solutions, 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 January 31, 2002; the Forum received a hard copy of the Complaint on January 31, 2002.

On February 5, 2002, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <ibingoclub.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 February 5, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 25, 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@ibingoclub.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 March 4, 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

Respondent’s <ibingoclub.com> domain name is confusingly similar to Complainant’s IBINGO mark.

Respondent does not have rights or legitimate interests in <ibingoclub.com>.

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

B. Respondent

No Response was submitted.

FINDINGS

Complainant has used its <ibingo.com> domain name since June 27, 1997 and has built a thriving bingo business around the use of this name.  A significant part of Complainant’s business identity is in its IBINGO club. Moreover, Complainant has filed for a registration of IBINGO with the United States Patent and Trademark Office.

Respondent registered the disputed domain name on August 25, 2001, and has used it as a website to promote its on-line bingo services.

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 common law rights in its IBINGO mark through continuous use of the name since 1997 and the resulting goodwill that its customer base associates with the IBINGO mark.

The disputed domain name is confusingly similar to Complainant’s IBINGO mark because it incorporates Complainant’s mark in its entirety, merely adding a top-level domain name, and the term “club” which is a generic word associated with Complainant’s services.  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 Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that "the addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants").

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

Rights or Legitimate Interests

Respondent is not presumed to have rights or legitimate interests in the disputed domain name because it has not submitted a Response to this Complaint.  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).

Respondent’s use of the confusingly similar domain name to attract and divert Complainant’s customers to its website offering competing bingo services indicates that Respondent was not making a bona fide offering of goods pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to ¶ 4(c)(iii).  See America Online, Inc. v. 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”); see also Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark).

There is no evidence that Respondent, known as Focus F, Ltd., is commonly known by IBINGO or <ibingoclub.com>, and Respondent has not provided any evidence.  As a result, Respondent is presumed not to have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  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 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).

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

Registration and Use in Bad Faith

Respondent’s use of the confusingly similar domain name to offer its competing bingo services is evidence of bad faith pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv).  See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion); see also Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant).

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 <ibingoclub.com> be transferred from Respondent to Complainant.

John J. Upchurch, Panelist

Dated: March 6, 2002

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