DECISION

Peter Capotosto d/b/a Armor Crafts v. Steebar Corp.

Claim Number: FA0212000135597

PARTIES

Complainant is Peter Capostosto d/b/a Armor Crafts, East Northport, NY (“Complainant”).  Respondent is Steebar Corp., Andover, NJ (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <armorcrafts.com>, registered with Domaindiscover.

PANEL

On January 7, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist. 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.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on December 2, 2002; the Forum received a hard copy of the Complaint on December 2, 2002.

On December 3, 2002, Domaindiscover confirmed by e-mail to the Forum that the domain name <armorcrafts.com> is registered with Domaindiscover and that Respondent is the current registrant of the name.  Domaindiscover has verified that Respondent is bound by the Domaindiscover 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 December 11, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 31, 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@armorcrafts.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.

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

The  <armorcrafts.com> domain name is identical to Complainant's ARMOR CRAFTS mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant has used the ARMOR CRAFTS mark in relation to its mail order catalog that supplies clock making, craft supplies, and design patterns for the craftsmarket since 1995.  Complainant has been doing business since the 1960’s under variations of the name ARMOR including JC ARMOR and ARMOR PRODUCTS.  Complainant is well known within its niche market.

Respondent, Steebar Corp., registered the disputed domain name on June 23, 2000.  Respondent is a competitor of Complainant and is using the disputed domain name in order to divert Internet users to its own website at <steebar.com>.

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

Complainant has established that it has rights in the ARMOR CRAFTS mark through continuous use of the mark in relation to the sale and marketing of its products.  The ICANN dispute resolution policy is “broad in scope” in that “the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice” to support a domain name Complaint under the Policy.  McCarthy on Trademarks and Unfair Competition, § 25:74.2, Vol. 4 (2000).

Respondent’s <armorcrafts.com> domain name is identical to Complainant’s mark because it incorporates Complainant’s entire mark and merely adds the generic top-level domain “.com.”  The addition of a generic top-level domain (“gTLD”) is irrelevant when determining whether a domain name is identical or confusingly similar because it is a required feature of every domain name.  Therefore, the gTLD “.com” adds no distinguishing characteristics capable of overcoming a Policy ¶ 4(a)(i) analysis.  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 “.com” after the name POMELLATO is not relevant); 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.’”).

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

Rights or Legitimate Interests

Respondent has failed to respond; therefore it is assumed that Respondent lacks rights and legitimate interests in the disputed 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 in respect of 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, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

Furthermore, because Respondent has not submitted a Response, it is appropriate for the Panel 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 Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint).

Respondent is using the disputed domain name in order to divert Internet users to its own website located at <steebar.com>, which competes with Complainant’s business.  Respondent is also in the crafts market, selling products very similar to Complainant.  The use of a domain name, identical to Complainant’s mark, to divert Internet users to a competing website is not considered to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See 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 MBS Computers Ltd. v. Workman, FA 96632 (Nat. Arb. Forum Mar. 16, 2001) (finding no rights or legitimate interests when Respondent is using a domain name identical to Complainant’s mark and is offering similar services).

Respondent is commonly known as Steebar Corp.  Furthermore, Respondent is using the disputed domain name in order to redirect Internet users to <steebar.com>. There is no evidence on record to establish that Respondent is commonly known as ARMOR CRAFTS or <armorcrafts.com>.  Therefore, the Panel finds that Respondent has no 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, a competitor of Complainant, is using the disputed domain name in order to divert Internet users to its own website at <steebar.com>.  The products sold at this website directly compete with Complainant’s products.  This type of use is evidence of bad faith use pursuant to Policy ¶ 4(b)(iii) because Respondent is disrupting Complainant’s business.  See Surface Prot. 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 Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where Respondent and Complainant were in the same line of business in the same market area).

Furthermore, based on the fact that Respondent is a direct competitor of Complainant and Respondent registered a domain name that is identical to Complainant’s mark, it can be inferred that Respondent had actual knowledge of Complainant’s mark when it registered the disputed domain name.  Registration of a domain name identical to Complainant’s mark, despite actual knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Entrepreneur Media, Inc. v. Smith, [2002] USCA9 115; 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse").

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 <armorcrafts.com> TRANSFERRED from Respondent to Complainant.

James P. Buchele, Panelist

Dated: January 16, 2003

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