Generic Top Level Domain Name (gTLD) Decisions

DECISION

Salim Hemani d/b/a Raza Communications v. Basavraj Banapur

Claim Number: FA0212000135604

PARTIES

Complainant is Salim Hemani d/b/a Raza Communications, Chicago, IL, USA (“Complainant”) represented by Patrick W. Fletcher, of Fletcher Law Offices.  Respondent is Basavraj Banapur, Cerritos, CA, USA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <rajacomm.com>, registered with Go Daddy Software, Inc.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Sandra Franklin as Panelist.

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 11, 2002.

On December 4, 2002, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <rajacomm.com> is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name.  Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 December 19, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 8, 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@rajacomm.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 January 16, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin 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.The <rajacomm.com> domain name is confusingly similar to Complainant's RAZA COMMUNICATIONS mark.

2.Respondent has no rights or legitimate interests in the <rajacomm.com> domain name.

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

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

FINDINGS

Complainant has used the RAZA COMMUNICATIONS mark since 1998 in connection with its long distance telecommunication services.  Complainant filed a trademark application (Serial No. 78/158,568) with the United States Patent and Trademark Office.  Complainant sells its prepaid long distance telephone service from its websites located at <raza.com> and <razacomm.com>.  Complainant advertises its services on Asian radio and TV stations as well as on popular websites such as <yahoo.com> and <aol.com>.  Complainant has also paid for top placement in search engines such as <google.com>, <msn.com> and <yahoo.com>, and hired Indian movie star Hrithik Roshan to act as a spokesperson for Complainant.

Respondent registered the disputed domain name on July 20, 2001.  Respondent is using the disputed domain name to offer services identical to Complainant’s long distance telecommunication 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 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 common law rights in the RAZA COMMUNICATIONS mark through use since 1998 and evidence of marketing and sales showing that the mark identifies Complainant’s services to the relevant consuming public.

Respondent’s <rajacomm.com> domain name is confusingly similar to Complainant’s RAZA COMMUNICATIONS mark because it merely replaces the “z” with a “j” and abbreviates “communications” to “comm.”  Complainant shortens the “communications” portion of its mark for its own website located at <razacomm.com>, therefore the abbreviation of “communications” does not create any distinct features capable of overcoming a claim of confusing similarity.  See Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated).  Furthermore the change from “z” to “j” does not create a distinct mark because “raja” and “raza” are phonetically similar.  Thus the replacement of letters is not a significant enough change to overcome a claim of confusing similarity pursuant to Policy ¶ 4(a)(i).  See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that the pronunciation and spelling between the domain name <venesign.com> and the Complainant’s mark, VERISIGN, are so close that confusion can arise in the mind of the consumer); see also YAHOO! Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain name <yawho.com> is confusingly similar to the Complainant’s YAHOO mark).

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

Rights or Legitimate Interests

Respondent failed to contest Complainant’s allegations or evidence contained in its submissions.  When Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  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”).  Further, Respondent has failed to invoke any circumstances that would demonstrate rights or legitimate interests in the domain name.  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 is using the disputed domain name to advertise and sell telecommunication services that directly compete with Complainant’s business.  The use of a confusingly similar domain name to attract Internet users to a competing website is not considered 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 Am. 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 a website using a domain name which is confusingly similar to the Complainant’s mark and for the same business”).

Respondent has submitted no evidence that it is commonly known as RAJA COMM or <rajacomm.com>.  Therefore, the Panel infers that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See 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); see also 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).

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

Registration and Use in Bad Faith

Respondent is using the disputed domain name, confusingly similar to Complainant’s mark, to confuse Internet users and attract them to its competing website.  This type of use disrupts Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See General Media Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) (finding bad faith where a competitor of Complainant registered and used a domain name confusingly similar to Complainant’s PENTHOUSE mark to host a pornographic web site); 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).

Accordingly, 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 <rajacomm.com> be TRANSFERRED from Respondent to Complainant.

Sandra Franklin, Panelist

Dated: January 23, 2003

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