DECISION

Whites Cove Corporation v. Lobster City

Claim Number: FA0310000206344

PARTIES

Complainant is Whites Cove Corporation (“Complainant”) represented by Alfred Frawley, P.O. Box 9546, Portland, ME 04112. Respondent is Lobster City, Portland ME  (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <directmainelobster.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.

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on October 29, 2003; the Forum received a hard copy of the Complaint on November 6, 2003.

On October 30, 2003, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <directmainelobster.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 November 7, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 28, 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@directmainelobster.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 4, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., 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 <directmainelobster.com> domain name is confusingly similar to Complainant’s MAINE LOBSTER DIRECT mark.

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

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

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

FINDINGS

Complainant has a pending trademark application with the United States Patent and Trademark Office (“USPTO”) for the MAINE LOBSTER DIRECT mark (Ser. No. 78/261,062) in relation to the sale of fish and shellfish by means of a global information network. Complainant has continuously used the mark in commerce since 1996.

Respondent registered the <directmainelobster.com> domain name on May 7, 2003. Respondent is using the disputed domain name to divert Internet traffic to Respondent’s website at the <lobstercity.com> domain name, a website that offers for sale lobster, fish and seafood.

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 demonstrated its rights in the MAINE LOBSTER DIRECT mark through its pending trademark application with the USPTO and its continuous use of the mark in commerce since 1996. See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that Complainant's trademark or service mark be registered by a government authority or agency for such rights to exist. Rights in the mark can be established by pending trademark applications); see also Great Plains Metromall, LLC v. Creach, FA 97044 (Nat. Arb. Forum May 18, 2001) (finding that the Uniform Domain Name Dispute Resolution Policy does not require “that a trademark be registered by a governmental authority for such rights to exist”).

Complainant argues that Respondent’s <directmainelobster.com> domain name is confusingly similar to Complainant’s MAINE LOBSTER DIRECT mark because the disputed domain name appropriates the entire mark and shifts the term “direct” from the end of the mark to the front. Respondent’s inversion of the terms of Complainant’s mark does not sufficiently differentiate the domain name from the mark under Policy ¶ 4(a)(i). See NCRAS Mgmt., LP v. Cupcake City, D2000-1803 (WIPO Feb. 26, 2001) (finding the domain name <nationalrentalcar.com> confusingly similar to the mark NATIONAL CAR RENTAL and holding that “merely inverting the terms of a mark . . . is insufficient to dispel consumer confusion; the mark and the resulting domain name are simply too similar to each other”); see also Playboy Enters. v. Movie Name Co., D2001-1201 (WIPO Feb. 26, 2002) (finding the domain name <channelplayboy.com> confusingly similar to the mark THE PLAYBOY CHANNEL).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not come forward to contest Complainant’s allegations. Therefore, the Panel accepts all reasonable allegations and inferences in the Complaint as true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertion in this regard”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Furthermore, based on Respondent’s failure to contest the Complaint, the Panel presumes Respondent lacks all rights to and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See 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); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond).

Respondent is using the <directmainelobster.com> domain name to divert Internet traffic to Respondent’s website at the <lobstercity.com> domain name, a website that offers for sale lobster, fish and seafood. Respondent’s use of a domain name confusingly similar to Complainant’s mark to divert Internet traffic to the website of a direct competitor demonstrates neither 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 N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no rights or legitimate interests in a domain name that diverted Internet users to Respondent’s competing website through the use of Complainant’s mark).

Moreover, Respondent has proffered no proof and no evidence in the record suggests that Respondent is commonly known by DIRECT MAINE LOBSTER or <directmainelobster.com>. Therefore, the Panel finds that Respondent has failed to demonstrate any rights to or legitimate interests in the disputed domain name with regard 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 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").

Accordingly, the Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent’s use of the <directmainelobster.com> domain name, a domain name confusingly similar to Complainant’s DIRECT MAINE LOBSTER mark, to redirect Internet traffic to Respondent’s competing website illustrates Respondent’s bad faith because the registration of a domain name primarily for the purpose of disrupting a competitor evidences registration and use of the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from Complainant's marks suggests that Respondent, Complainant’s competitor, registered the names primarily for the purpose of disrupting Complainant's business); 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, Respondent’s unauthorized commercial use of the <directmainelobster.com> domain name suggests that Respondent used the domain name to attempt to attract Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website, which is evidence of bad registration and use under Policy ¶ 4(b)(iv). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding bad faith where Respondent attracted users to a website sponsored by Respondent and created confusion with Complainant’s mark as to the source, sponsorship, or affiliation of that website); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks).

The Panel finds that Policy ¶ 4(a)(iii) has been established.

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 <directmainelobster.com> domain name be TRANSFERRED from Respondent to Complainant.

Tyrus R. Atkinson, Jr., Panelist

Dated:  December 15, 3002

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