Generic Top Level Domain Name (gTLD) Decisions

DECISION

Lowrance Electronics, Inc. v. 1

Claim Number:  FA0302000145210

PARTIES

Complainant is Lowrance Electronics, Inc., Tulsa, OK, USA (“Complainant”) represented by Brian M. Davis, of Alston & Bird LLP. Respondent is 1, Sydney, AUSTRALIA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lowranceelectronics.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.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.

Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 10, 2003; the Forum received a hard copy of the Complaint on February 18, 2003.

On February 10, 2003, Intercosmos Media Group, Inc. d/b/a Directnic.Com confirmed by e-mail to the Forum that the domain name <lowranceelectronics.com> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.Com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.Com 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 18, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 10, 2003 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@lowranceelectronics.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 14,2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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 makes the following assertions:

1.   Respondent’s <lowranceelectronics.com> domain name is identical to Complainant’s LOWRANCE ELECTRONICS mark.

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

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

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant has used the mark LOWRANCE ELECTRONICS since 1957 in relation to its various electronic and computer products.  Complainant registered its mark with the United States Patent and Trademark Office on April 13, 1976 as Registration Number 1,038,018.  Complainant does business throughout the world, including Australia, Respondent’s place of domicile.  Complainant holds the registration and uses the <lowrance.com> domain name to promote and sell its goods and services.

Respondent registered the <lowranceelectronics.com> domain name on June 4, 2002.  Respondent is using the domain name for a website that offers links to various third-party websites, including those that offer gambling, sexually explicit material and competing computer and electronic products.

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 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 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

Complainant has established that it has rights in the LOWRANCE ELECTRONICS mark through registration with the USPTO and use of the mark in relation to its electronic and computer products since 1957.

Respondent’s <lowranceelectronics.com> domain name is identical to Complainant’s LOWRANCE ELECTRONICS mark because it incorporates Complainant’s entire mark and merely adds the top-level domain name “.com.”  The addition of a top-level domain name does not add any distinct characteristics capable of overcoming a claim of identical or confusing similarity.  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); 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).

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

Rights or Legitimate Interests

Respondent has failed to submit a Response in this proceeding.  Thus, the Panel is permitted to accept all reasonable allegations and inferences in the Complaint as true.  See 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); see also 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”).

Moreover, Respondent has failed to invoke any circumstances that could demonstrate rights and legitimate interests in the domain name.  When Complainant asserts a prima facie case against Respondent, the burden of proof shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the Respondent has failed to invoke any circumstance that could demonstrate any rights or legitimate interests in the domain name).

Respondent is using the <lowaranceelectronics.com> domain name to attract Internet users to its own website that features links to third-party websites that compete with Complainant’s business.  The Panel infers that Respondent is making a profit from the Internet traffic it diverts to these featured websites.  The use of a domain name identical or confusingly similar to Complainant’s mark to attract Internet users to a website that competes with Complainant’s business is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website); see also Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods); 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 on record that Respondent is commonly known as LOWRANCE ELECTRONICS or <lowranceelectronics.com>.  Respondent is known to the Panel as “1,” and has not come forward with any evidence to suggest that it is known by any other name.  Thus, Respondent has failed to establish that it has any 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).

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

Registration and Use in Bad Faith

Respondent is using a domain name identical to Complainant’s mark to attract Internet users to its own website.  Respondent’s website features links to third-party websites featuring competing products, sexually explicit material, and online gambling.  The Panel infers that Respondent is making a profit from the Internet traffic that is diverted to these websites from Respondent’s website.  This type of use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv) because Respondent is using an infringing domain name for its own commercial gain.  See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also 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).  

Moreover, Respondent’s use of the a domain name identical to Complainant’s mark to provide links to sexually explicit material is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (use of another's well-known mark to provide a link to a pornographic site is evidence of bad faith registration and use); 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”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding bad faith where the Respondent linked the domain name in question to websites displaying banner advertisements and pornographic material).

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

DECISION

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

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

Hon. Ralph Yachnin,Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  March 17, 2003