DECISION

Lenson Realty, Inc. v. Javad aka James Banaeian

Claim Number:  FA0304000153544

PARTIES

Complainant is Lenson Realty, Inc., Boca Raton, FL (“Complainant”) represented by Rachelle R. McBride, of Sachs, Sax & Klein. Respondent is James Banaeian, Boca Raton, FL (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

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

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.

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 1, 2003; the Forum received a hard copy of the Complaint on April 3, 2003.

On April 7, 2003, Domaindiscover confirmed by e-mail to the Forum that the domain name <lensonrealty.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 April 8, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 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@lensonrealty.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 May 5, 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 <lensonrealty.com> domain name is identical to Complainant’s LENSON REALTY mark.

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

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

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

FINDINGS

Complainant, Lenson Realty, Inc., has existed as a Florida corporation since 1997.  Complainant’s owner, Mark Lenson, is a licensed real estate broker.  Mr. Lenson does all of his real estate business under the corporate name Lenson Realty, Inc.

Respondent, James Banaeian, registered the <lensonrealty.com> domain name on June 26, 2002.  A former sales agent of Complainant, Respondent left his employment with Complainant in March of 2002.  Respondent is currently making no use of the domain name other than to attempt to sell its registration at <buydomains.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 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 LENSON REALTY mark through continuous use since 1997 in relation to its real estate broker services.

Respondent’s <lensonrealty.com> domain name is identical to Complainant’s LENSON REALTY mark because it incorporates Complainant’s entire mark and merely adds the top-level domain “.com.”  The addition of a top-level domain is irrelevant when determining whether a domain name is identical or confusingly similar pursuant to Policy ¶ 4(a)(i).  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 making no use of the <lensonrealty.com> domain name.  Respondent is currently using the domain name to divert Internet users to <buydomains.com>, where the <lensonrealty.com> domain name registration is offered for sale.  The sale of a domain name registration is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit); see also Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where Respondent registered the domain name with the intention of selling its rights).

Moreover, as a past employee of Complainant, Respondent was on notice of Complainant’s rights, as well as Respondent’s own lack of rights in the <lensonrealty.com> domain name.  Thus, the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See Vinidex Pty. Ltd. v. Auinger, AF-0402 (eResolution Oct. 18, 2000) (finding that as a former employee, Respondent knew or should have known Complainant’s mark was in use as an integral part of the corporate name and as a trademark and that the Respondent understood the legitimate interests and rights of Complainant and, by contrast, its own lack of interest or right.  This is sufficient for Complainant to establish that Respondent had no rights or interest in the domain name); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

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

Registration and Use in Bad Faith

As a former employee of Complainant, Respondent had actual knowledge of Complainant’s rights in the LENSON REALTY mark when it registered the <lensonrealty.com> domain name.  Registration of an infringing domain name, despite actual knowledge of Complainant’s rights, is evidence of bad faith.  Thus, the Panel finds that Respondent registered the disputed domain name in bad faith.  See Arab Bank for Inv. & Foreign Trade v. Akkou, D2000-1399 (WIPO Dec. 19, 2000) (finding bad faith registration and use where Respondent was employed by Complainant’s business, was fully aware of the name of her employer, and made no use of the infringing domain name); see also Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2000) (finding "Respondent's registration of the company name of his former employer as a domain name is an act of bad faith").

Respondent is making no use of the disputed domain name other than attempting to sell the domain name registration at <buydomains.com>.  Registering a domain name for the primary purpose of selling, renting, or leasing its registration is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i).  See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale); see also Wrenchead.com, Inc. v. Hammersla, D2000-1222 (WIPO Dec. 12, 2000) (finding that offering the domain name for sale at an auction site is evidence of bad faith registration and use).

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

Tyrus R. Atkinson, Jr., Panelist

Dated:  May 12, 2003

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