DECISION

Whitminster International Limited v. ActiveVector c/o Domain Admin

Claim Number:  FA0409000323737

PARTIES

Complainant is Whitminster International Limited (“Complainant”), Avocet Business Park, Dudbridge Rd, Stroud, Glos GL5 3HF U.K.  Respondent is ActiveVector c/o Domain Admin (“Respondent”), Viaducto Rio de la Piedad 2537, Magdalena Mixiuhca, 15860, MX.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <klenzeen.com>, registered with Enom, Inc.

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.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 3, 2004; the Forum received a hard copy of the Complaint on September 8, 2004.

On September 3, 2004, Enom, Inc. confirmed by e-mail to the Forum that the domain name <klenzeen.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 September 13, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 4, 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@klenzeen.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 October 18, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq.,  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 <klenzeen.com> domain name is identical to Complainant’s KLENZEEN mark.

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

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

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

FINDINGS

Complainant applied for registration of the KLENZEEN mark with The Patent Office of Great Britain and Northern Ireland on February 21, 2001 (Application No. 22,619,778). In the past, Complainant held the registration for the <klenzeen.com> domain name and used it in conjunction with its cleaning products business.  Complainant mistakenly forgot to renew the domain name registration. 

Respondent registered the <klenzeen.com> domain name on July 31, 2004, after Complainant forgot to renew the domain name registration.  The domain name redirects Internet users to adult-oriented websites.

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 rights in the KLENZEEN mark through its application for the mark with The Patent Office of Great Britain and Northern Ireland and through its prior registration of the disputed domain name.  See Am. Anti-Vivisection Soc'y. v. "Infa dot Net" Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that the fact that Complainant held the domain name prior to Respondent’s registration, as well held a pending trademark application in the mark, evidences rights in the domain name and the mark therein contained); see also Phone-N-Phone Serv. (Bermuda) Ltd. v. Shlomi (Salomon) Levi, D2000-0040 (WIPO Mar. 23, 2000) (finding that the domain name was identical or confusingly similar to Complainant’s pending service mark application).

Respondent’s <klenzeen.com> domain name is identical to Complainant’s mark because the domain name fully incorporates the mark and merely adds the generic top-level domain “.com” to the mark.  The addition of the generic top-level domain “.com” is insufficient to distinguish the domain name from Complainant’s mark.  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).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Due to Respondent’s failure to respond to the Complaint, the Panel presumes that Respondent lacks rights and legitimate interests in the <klenzeen.com> domain name.  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 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).

Nothing in the record indicates that Respondent is commonly known by the <klenzeen.com> domain name.  Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

Moreover, the <klenzeen.com> domain name is identical to Complainant’s mark and diverts Internet users to adult-oriented websites.  The Panel infers that Respondent receives click-through fees for redirecting Internet users to these adult-oriented websites.  Respondent’s use of the misleading domain name for commercial gain does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that Respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to Complainant and presumably with the purpose of earning a commission or pay-per-click referral fee, did not evidence rights or legitimate interests in the domain name); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempted to profit using Complainant’s mark by redirecting Internet traffic to its own website).

In addition, Respondent’s <klenzeen.com> domain name resolves to a website that provides links to adult-oriented websites.  Such use tarnishes Complainant’s mark and does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii).  Therefore, the Panel concludes that such use is evidence that Respondent lacks rights and legitimate interests in the domain name.  See ABB Asea Brown Boveri Ltd. v. Quicknet, D2003-0215 (WIPO May 26, 2003) (stating that the fact that the “use of the disputed domain name in connection with pornographic images and links tarnishes and dilutes [Complainant’s mark]” was evidence that Respondent had no rights or legitimate interests in the disputed domain name); see also McClatchy Mgmt. Serv., Inc. v. Carrington, FA 155902 (Nat. Arb. Forum June 2, 2003) (holding that Respondent’s use of the disputed domain names to divert Internet users to a website that features pornographic material, had been “consistently held” to be neither a bona fide offering of goods or services . . . nor a legitimate noncommercial or fair use).

Furthermore, Respondent registered the <klenzeen.com> domain name after Complainant inadvertently forgot to renew its registration of the domain name.  Such conduct is evidence that Respondent lacks rights and legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii).  See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that Complainant’s prior registration of the same domain name is a factor in considering Respondent’s rights or legitimate interest in the domain name); see also Edmunds.com, Inc. v. Ult. Search Inc., D2001-1319 (WIPO Feb. 1, 2002) (finding that Respondent could not rely on equitable doctrines under the Policy to defend its registration of the disputed domain name after the registration was inadvertently permitted to lapse by Complainant, noting that “Respondent was aware of the Complainant’s well-known business and its mark and intended to exploit the mark”)

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent’s <klenzeen.com> domain name is identical to Complainant’s mark and redirects Internet users to adult-oriented websites.  The Panel infers that Respondent receives click-through fees for redirecting Internet users to these adult-oriented websites.  Therefore, the Panel finds that Respondent’s use of the misleading domain name for commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that, if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain).

Moreover, the mere fact that the <klenzeen.com> domain name is identical to Complainant’s mark and redirects Internet users to adult-oriented websites is sufficient evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that Respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also National Ass’n of Stock Car Auto Racing, Inc. v. RMG Inc – BUY or LEASE by E-MAIL, D2001-1387 (WIPO Jan. 23, 2002) (“it is now well known that pornographers rely on misleading domain names to attract users by confusion, in order to generate revenue from click-through advertising, mouse-trapping, and other pernicious online marketing techniques”).

In addition, Respondent registered the <klenzeen.com> domain name after Complainant inadvertently forgot to renew its registration of the domain name.  Respondent’s conduct is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See InTest Corp. v. Servicepoint, FA 95291 (Nat. Arb. Forum Aug. 30, 2000) (finding that where the domain name has been previously used by Complainant, subsequent registration of the domain name by anyone else indicates bad faith, absent evidence to the contrary); see also BAA plc v. Spektrum Media Inc., D2000-1179 (WIPO Oct. 17, 2000) (finding bad faith where Respondent took advantage of Complainant’s failure to renew a domain name).

The Panel finds that Policy ¶ 4(a)(iii) has been 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 <klenzeen.com> domain name be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  October 19, 2004

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