DECISION

Center for Science in the Public Interest v. Guest Choice Network

Claim Number: FA0111000102524

PARTIES

Complainant is Center for Science in the Public Interest (CSPI), Washington, DC (“Complainant”) represented by Elizabeth Kingsley, of Harmon, Curran, Spielberg & Eisenberg, LLP.  Respondent is Guest Choice Network, Washington, DC (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <cspinet.com>, registered with Network Solutions.

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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 27, 2001; the Forum received a hard copy of the Complaint on November 29, 2001.

On November 29, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <cspinet.com> is registered with Network Solutions and that 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 November 29, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 19, 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@cspinet.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 28, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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 the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Respondent ‘s <cspinet.com> domain name is confusingly similar to Complainant’s registered CSPI mark.

Respondent does not have any rights or legitimate interests in the domain name at issue.

Respondent regsitered and used the domain name at issue in bad faith.

B. Respondent

No Response was received.

FINDINGS

Complainant registered the CSPI trademark on the Principal Register of the U.S. Patent and Trademark Office November 30, 1999 (Registration No. 2,294,989).  Complainant first began using the CSPI mark in 1971.  Complainant is a nonprofit education and advocacy organization whose services include improving the safety and nutritional quality of the food supply. 

The CSPI mark is used in connection with Complainant’s representation of citizen’s interests before legislative, regulatory and judicial bodies; in the promotion of public health; to publish a newsletter and other documents related to public health; and on consumer products including tote bags and clothing.

Complainant has established a presence on the Internet through use of its <cspinet.org> website since February 24, 1996.

Respondent registered the <cspinet.com> domain name January 18, 2000, well after Complainant had made use of the trademark and had registered it.  Respondent’s website provides two links on its website: one to Complainant’s website, and one to a website for criticism of Complainant’s 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.

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.

Identical and/or Confusingly Similar

Respondent’s  <cspinet.com> domain name is confusingly similar to Complainant’s CSPI regsitered trademark.  The addition of the top-level domain “.com” with the generic term “net” does not sufficiently distinguish the domain name from the registered trademark for purposes of confusing similarity.  See World Wrestling Fed'n Entm't., Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001) (finding that “[t]he addition of the country code top level domain (ccTLD) designation <.tv> does not serve to distinguish those names from Complainant’s marks since ‘.tv’ is a common Internet address identifier that is not specifically associated with Respondent”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Arthur Guinness Son & Co. (Dublin) Ltd.  v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term).

Moreover, Respondent’s domain name which incorporates Complainant’s mark in its entirety is confusingly similar to Complainant’s mark because it falsely implies an association between Respondent’s website and Complainant’s registered trademark.  See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding that given the similarity of the Complainant’s marks with the domain name, consumers will presume the domain name is affiliated with the Complainant …the Respondent is attracting Internet users to a website, for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, or endorsement of the Respondent’s website).

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

Rights or Legitimate Interests

The Panel is permitted to make all inferences in favor of Complainant when Respondent has failed to respond.  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”).

Furthermore, Respondent’s failure to provide a Response indicates that Respondent has no rights or legitimate interests.  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 has no rights or legitimate interests in the domain name at issue because its attempt to divert users of Complainant’s services to its own website is not a bona fide offering of goods pursuant to Policy ¶ 4(c)(i).  See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests where Respondent diverted Complainant’s customers to his websites).

Additionally, Respondent does not have any rights or legitimate interests because it has provided no evidence that it is commonly known by the disputed domain name.  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).

Finally, Respondent’s use of its domain name for criticism of Complainant, using Complainant’s mark in its entirety, is not determined to be a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).  As a result, Respondent has no rights or legitimate interests in the domain name at issue.  See E. & J. Gallo Winery v. Hanna Law Firm, D2000-0615 (WIPO Aug. 3, 2000) (finding that establishing a legitimate free speech/complaint site does not give rights to use a famous mark in its entirety).

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

            Registration and Use in Bad Faith

Respondent’s deliberate use of a confusingly similar website to present a link to criticism of Complainant may be evidence of bad faith.  See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (finding that the Respondent registered the domain names, kwasizabantu.com, kwasizabantu.org, kwasizabantu.net, in bad faith where Respondent published negative comments regarding the Complainant’s organization on the confusingly similar website).

           

Moreover, Respondent’s registration of a domain name that is likely to be falsely associated with Complainant’s marks by Internet users is evidence of bad faith pursuant to Policy ¶ 4(c)(iv).  See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that 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”)

            The Panel has found 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 <cspinet.com>  be hereby transferred from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated: January 2, 2002

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