DECISION

Manpower, Inc. v. Digital Pulsar, Proxy

Claim Number:  FA0407000304785

PARTIES

Complainant is Manpower, Inc. (“Complainant”), represented by Paul D. McGrady, Jr., of Ladas & Parry, 224 South Michigan Avenue, Chicago, IL 60604.  Respondent is Digital Pulsar, Proxy (“Respondent”), 18090 Collins Av #T17, Sunny Isles Beach, FL 33160.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <citymanpower.com>, registered with Namezero.

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.

James A. Crary as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on July 27, 2004; the Forum received a hard copy of the Complaint on July 28, 2004.

On July 28, 2004, Namezero confirmed by e-mail to the Forum that the domain name <citymanpower.com> is registered with Namezero and that Respondent is the current registrant of the name. Namezero has verified that Respondent is bound by the Namezero 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 August 3, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 23, 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@citymanpower.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 September 02, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Crary 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 <citymanpower.com> domain name is confusingly similar to Complainant’s MANPOWER mark.

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

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

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

FINDINGS

Complainant Manpower, Inc. was formed in 1948 in Milwaukee, Wisconsin.  Complainant’s first international activities commenced in 1955 when Complainant moved its operations north and established a business presence in Canada.  Complainant’s first European offices opened in 1956 in the United Kingdom, and by 1957 Complainant had established offices in France. 

As of 2001, Complainant had achieved worldwide annual sales of approximately $11.8 billion.  That same year, Complainant ranked number 182 in the Fortune 500 list of America’s largest corporations.

Complainant has provided the Panel with an extensive list of numerous applications and registrations for the MANPOWER mark that it owns in numerous jurisdictions around the world.  As a single example, the United States Patent and Trademark Office granted Complainant’s registration application for the MANPOWER mark on January 6, 1959 for use in connection with its business service that furnishes “its employees on a contract basis to persons or places of business requiring part-time or temporary help” (Reg. No. 672,305).

On September 3, 2002, Respondent registered the domain name <citymanpower.com>.  Respondent is using the disputed domain name to offer pornographic goods and services.  Specifically, the attached website contains a variety of pornographic images of nude women for the purpose of selling web cameras.

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

The registration of a mark with an appropriate governmental authority is sufficient for a complainant to establish rights in the mark under paragraph 4(a)(i) of the Policy.  Complainant has registered the MANPOWER mark with numerous jurisdictions worldwide, which is sufficient to establish its rights in the mark.  See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”).

Domain names that incorporate a third party’s mark in its entirety and merely add a generic or descriptive term have been consistently found to be confusingly similar to the mark pursuant to paragraph 4(a)(i) of the Policy.  The disputed domain name, <citymanpower.com>, contains Complainant’s MANPOWER mark in its entirety and has merely added the term “city” to the mark.  Therefore, the Panel follows the mainstream of precedent in this regard and finds that the domain name <citymanpower.com> is confusingly similar to Complainant’s MANPOWER mark.  See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporated the VIAGRA mark in its entirety, and deviated only by the addition of the word “bomb,” the domain name was rendered confusingly similar to Complainant’s mark); see also Westfield Corp., Inc. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element); see also Novell, Inc. v. Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003) (finding the domain name <novellsolutions.com> confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” to the mark because even though “the word 'solutions' is descriptive when used for software, Respondent has used this word paired with Complainant's trademark NOVELL”).

Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

The failure of Respondent to file a Response allows all reasonable allegations set forth in the Complaint to be deemed true.  See Vert. Solutions Mgmt., Inc. v. Webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); 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).

In addition, the failure to respond may be construed as an implicit admission that Respondent lacks rights to and legitimate interests in the disputed 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; see also Honeywell Int’l Inc. v. Domain Deluxe, FA 269166 (Nat. Arb. Forum June 29, 2004) (“The failure of Respondent to respond to the Complaint functions both as an implicit admission that Respondent lacks rights to and legitimate interests in the domain names, as well as a presumption that Complainant’s reasonable allegations are true.”). 

It has been a frequent holding under the Policy that a domain name registrant does not use a domain name in connection with a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy, nor a legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii) of the Policy, when the registrant registers a domain name that is identical or confusingly similar to a third party’s mark and uses it to host pornographic material.  In the instant case, Respondent has (1) registered a domain name that is confusingly similar to Complainant’s mark, (2) failed to respond to the Complaint, and (3) is using the domain name to host graphic, pornographic images.  Therefore, the Panel finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy, nor a legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii). See Yahoo! Inc. v. Zuccarini, FA 183997 (Nat. Arb. Forum Oct. 20, 2003) (“Respondent's use of the disputed domain names to redirect Internet users to pornographic websites, where the names were selected specifically for the purpose of trading on the goodwill of Complainant's marks, cannot qualify as a bona fide offering of goods or services or as a legitimate noncommercial or fair use of the names under the Policy.”); see also Am. Online, Inc. v. Bates, FA 192595 (Nat. Arb. Forum Oct. 7, 2003) (“Attempts to commercially benefit from a domain name that is confusingly similar to another's mark by linking the domain name to an adult-oriented website [is] evidence that the registrant lacks rights or legitimate interests in the domain name.”). 

Complainant has alleged that Respondent is not commonly known by the disputed domain name.  Having reviewed the record in its entirety, Complainant’s allegation is deemed reasonable.  Thus, without the benefit of a Response, the Panel finds that the Respondent is not commonly known by the domain name <citymanpower.com> pursuant to Policy ¶ 4(c)(ii), consistent with Complainant’s reasonable allegation.  See Vert. Solutions Mgmt., Inc. v. Webnet-marketing, Inc., FA 95095; see also Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (finding that the WHOIS information, and its failure to imply that Respondent is commonly known by the disputed domain name, is a factor in determining that Policy ¶ 4(c)(ii) does not apply); 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).

Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Paragraph 4(b) of the Policy lists a set of factors that evidence a domain name registrant’s bad faith registration and use of a domain name.  However, those factors are non-exclusive and therefore do not exclude other circumstances from being considered in the determination of bad faith pursuant to paragraph 4(a)(iii) of the Policy.  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith) ; see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).

As stated previously, Respondent (1) registered a domain name that is confusingly similar to Complainant’s mark, (2) failed to respond to the Complaint, and (3) is using the domain name to host graphic, pornographic images.  The previous three facts standing alone are generally insufficient to support a finding of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  Yet, as each fact is stacked atop the others, the product becomes a robust foundation capable of supporting a finding of bad faith registration and use.  Therefore, the Panel finds that these circumstances indicate that Respondent registered and used the disputed domain name in bad faith pursuant to paragraph 4(a)(iii) of the Policy.  See Microsoft Corp. v. Horner, D2002-0029 (WIPO Feb. 27, 2002) (holding that Respondent’s use of Complainant’s mark to post pornographic photographs and to publicize hyperlinks to additional pornographic websites evidenced bad faith use and registration of the domain name); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).

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

James A. Crary, Panelist

Dated:  September 16, 2004

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