I have not been directly affected by this but I am angry just like all of you. So I did some digging (like to think of my self as an ametuer investigator, very ametuer) and I found this
Hallelujah Acres, Inc. v. Domainqueue c/o Domain Admin So if Neil and Domainqueue are one in the same it seems that this is proof of at least more cyber squatting. Interestingly the case refrenced does not refer to Domainqueue or whoever owns it by name only as a company.
Its a long read but might be worth it
national arbitration forum
DECISION
Hallelujah Acres, Inc. v. Domainqueue c/o Domain Admin
Claim Number: FA0509000558207
PARTIES
Complainant is Hallelujah Acres, Inc. (“Complainant”), represented by Neil M. Batavia of Dority & Manning, Post Office Box 1449, Greenville, SC, 29602-1449. Respondent is Domainqueue c/o Domain Admin (“Respondent”), 2346 NW Clarion Suite 303, New City, NY, 10956.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hallelujahacres.com>, registered with Vivid Domains, Inc.
PANEL
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically September 9, 2005; the National Arbitration Forum received a hard copy of the Complaint September 13, 2005.
On September 16, 2005, Vivid Domains, Inc confirmed by e-mail to the National Arbitration Forum that the <hallelujahacres.com> domain name is registered with Vivid Domains, Inc and that Respondent is the current registrant of the name. Vivid Domains, Inc verified that Respondent is bound by the Vivid Domains, Inc registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 19, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 10, 2005, 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
[email protected] by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 17, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 National Arbitration 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 domain name that Respondent registered, <hallelujahacres.com>, is identical to Complainant’s HALLELUJAH ACRES mark.
2. Respondent has no rights to or legitimate interests in the <hallelujahacres.com> domain name.
3. Respondent registered and used the <hallelujahacres.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Hallelujah Acres, Inc., provides education, products, services and other resources to assist people in improving health. Complainant holds a registration with the United States Patent and Trademark Office (“USPTO”) for the HALLELUJAH ACRES mark (Reg. No. 2,077,460 issued July 8, 1997). Complainant began using the mark in 1989 in association with goods and services relating to books and newletters dealing with health, nutrition and biblical information.
Complainant also operates a website at the <hacres.com> domain name, which it registered on June 11, 1997.
Respondent registered the <hallelujahacres.com> domain name August 31, 2005. The domain name resolves to a website that displays links to various third-party websites offering products and services that compete with those of Complainant.
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 will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint 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.”).
Paragraph 4(a) of the Policy requires Complainant to 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 to and/or Confusingly Similar
Complainant established using extrinsic proof in this proceeding that it has rights in the HALLELUJAH ACRES mark by registering the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
The <hallelujahacres.com> domain name is comprised of Complainant’s entire HALLELUJAH ACRES mark and the generic top-level domain name (“gTLD”) “.com.” The addition of a gTLD is irrelevant in determining similarity under Policy ¶ 4(a)(i), because domain name registrants are required to add a gTLD or its equivalent to register a domain name. Thus, because the gTLD is the only difference between the domain name and the mark, the Panel finds that the disputed domain name is identical to Complainant’s mark. See 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"); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
Thus, the Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Rights to or Legitimate Interests
The Policy requires Complainant to satisfy the initial burden of proving that it has rights and that Respondent lacks rights to and legitimate interests in the disputed domain name. In Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001), the panel held:
Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.
Id.; see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). Having found that Complainant has met its initial burden by establishing a prima facie case, the Panel will now analyze whether Respondent has met its burden to establish rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the <hallelujahacres.com> domain name and that this is evidenced by the fact that Respondent is identified as “Domainqueue” in the WHOIS information for the disputed domain name. Respondent failed to respond and has, therefore, not contested Complainant’s assertions. The Panel, therefore, accepts Complainant’s contentions and finds that Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“
ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”).
Additionally, Complainant asserts that Respondent is using the <hallelujahacres.com> domain name to operate a website that displays links to third-party websites related to health and nutrition, some of which are in direct competition with Complainant. The Panel infers that Respondent benefits from diverting Internet users to these third-party websites by earning click-through fees for those users directed via Respondent’s website at the disputed domain name. Respondent cannot establish rights or legitimate interests under Policy ¶ 4(c)(i) or ¶ 4(c)(ii) by using Complainant’s mark to attract Internet users to Respondent’s commercial website. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy).
Accordingly, the Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant urges that Respondent is using the <hallelujahacres.com> domain name for a website that links to products and services that compete with those of Complainant. The Panel infers that Respondent receives referral fees for forwarding Internet users interested in Complainant’s products and services to competitors’ websites. Respondent’s use of Complainant’s HALLELUJAH ACRES mark in the domain name creates a likelihood of confusion and suggests an attempt to attract Internet users to Respondent’s commercial website. The Panel finds that this is sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See CMG Worldwide, Inc. v. Lombardi, FA 95966 (Nat. Arb. Forum Jan. 12, 2001) (finding that the respondent’s use of the complainant’s VINCE LOMBARDI mark to divert Internet users to its commercial website located at the <vincelombardi.com> domain name constituted bad faith use and registration of the disputed domain name); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Furthermore, Respondent had constructive notice of Complainant’s rights in the HALLELUJAH ACRES mark due to Complainant’s registration of the mark with the USPTO. See Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”). In addition, Respondent’s use of a domain name identical to Complainant’s mark to operate a website that links to third parties in competition with Complainant suggests that Respondent had actual knowledge of Complainant’s rights in the mark. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Respondent’s registration of a domain name incorporating Complainant’s mark with actual or constructive knowledge of Complainant’s rights in the mark is evidence of bad faith registration and user under Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.”).
Consequently, the Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hallelujahacres.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: October 31, 2005.
