DECISION

Museum of Science and Industry v. Pro-Life Domains Not For Sale

Claim Number:  FA0312000220026

PARTIES

Complainant is Museum of Science and Industry, Chicago, IL (“Complainant”) represented by Ariana G. Voigt, of McDermott, Will & Emery, 227 West Monroe, Chicago, IL 60606.  Respondent is Pro-Life Domains Not For Sale, 5444 Arlington Ave., #g14, Bronx, NY 10471 (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <museumofscienceandindustry.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com.

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 December 15, 2003; the Forum received a hard copy of the Complaint on December 16, 2003.

On December 16, 2003, Intercosmos Media Group, Inc. d/b/a Directnic.Com confirmed by e-mail to the Forum that the domain name <museumofscienceandindustry.com> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.Com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.Com 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, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 8, 2004 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@museumofscienceandindustry.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 15, 2004, 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 <museumofscienceandindustry.com> domain name is identical to Complainant’s MUSEUM OF SCIENCE AND INDUSTRY mark.

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

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

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

FINDINGS

Complainant has used its MUSEUM OF SCIENCE AND INDUSTRY mark in connection with museum exhibition services since 1933.  Complainant’s mark enjoys wide public recognition and international fame as a result of lengthy and continuous use.

Respondent registered the disputed domain name on February 19, 2002.  Respondent uses the name to direct Internet users to <abortionismurder.org>, a site that depicts aborted babies.

Complainant sent a ‘cease and desist’ letter to Respondent requesting the transfer of the disputed domain name registration on December 2, 2003.  Complainant’s authorized representative received a response from Respondent requesting a payment of $985 for the transfer of the name.

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 common law rights in its MUSEUM OF SCIENCE AND INDUSTRY mark through continuous use since 1933 and the secondary meaning associated with the mark.  See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Fishtech v. Rossiter, FA 92976 (Nat. Arb. Forum Mar. 10, 2000) (finding that Complainant has common law rights in the mark FISHTECH that it has used since 1982). 

Difference is absent between the disputed domain name and Complainant’s widely recognized mark.  The only distinctiveness is the addition of the top-level domain name, which is irrelevant for purposes of the Policy.  See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that the addition of a top-level domain is without legal significance).

Therefore, Policy ¶ 4(a)(i) is established.

Rights or Legitimate Interests

Respondent has not asserted any rights or legitimate interests in the domain name.  Therefore, the Panel may presume that Respondent lacks rights and 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); 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).

There has been no evidence advanced that Respondent is commonly known by 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).

Furthermore, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), because it is diverting unsuspecting Internet users who are attempting to find Complainant to <abortionismurder.org>, a site wholly unrelated to Complainant’s mark.  See Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use); see also Am. Online, Inc. v. Tencent Communications Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that use of Complainant’s mark “as a portal to suck surfers into a site sponsored by Respondent hardly seems legitimate”).

Therefore, Policy ¶ 4(a)(ii) is established.

Registration and Use in Bad Faith

Respondent has registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(i) by requesting consideration in excess of any out-of-pocket costs incurred by Respondent, in exchange for the transfer of the disputed domain name registration.  See Tech. Prop., Inc v. Hussain, FA 95411 (Nat. Arb. Forum Sept. 14, 2000) (finding bad faith where Respondent offered the domain names for sale for $2,000); see also World Wrestling Fed’n Entmt., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the domain name in bad faith because it offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that Respondent demonstrated bad faith when it requested monetary compensation beyond out-of-pocket costs in exchange for the registered domain name).

Furthermore, Respondent registered and uses the domain name in bad faith by appropriating Complainant’s MUSEUM OF SCIENCE AND INDUSTRY mark in its entirety, and redirecting Internet users seeking Complainant to a graphic site that depicts dead babies.  See McClatchy Mgmt. Servs., Inc. v. Please DON'T Kill Your Baby, FA 153541 (Nat. Arb. Forum May 28, 2003) (“By intentionally taking advantage of the goodwill surrounding Complainant’s mark to further its own political agenda, Respondent registered the disputed domain names in bad faith”); see also Journal Gazette Co. v. Domain For Sale Inc. a/k/a Domain World, FA 12202 (Nat. Arb. Forum Oct. 9, 2002) (“Respondent chose the domain name to increase the traffic flowing to the <abortionismurder.org> and <thetruthpage.com> websites”); see also Journal Gazette Co. v. Domain For Sale Inc. a/k/a Domain World, FA 12202 (Nat. Arb. Forum Oct. 9, 2002) (“Respondent chose the domain name to increase the traffic flowing to the <abortionismurder.org> and <thetruthpage.com> websites”).

Therefore, the Panel finds Policy ¶ 4(a)(iii) satisfied.

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

Tyrus R. Atkinson, Jr, Panelist

Dated:  January 29, 2004

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