Complainant is Appliancepartspros.com, Inc. of Van Nuys, California, United States of America, represented by Stowell, Zeilenga, Ruth, Vaughn & Treiger LLP, United States of America.
Respondent is Partsearch Technologies of New York, New York, United States of America.
The disputed domain name <theappliancepartspro.com> (the “Domain Name”) is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2010. On March 17, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the Domain Name. On March 18, 2010, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 31, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 21, 2010.
The Center appointed Gordon Arnold as the sole panelist in this matter on April 26, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The following facts are uncontested and supported by a declaration of Mr. R. Kagan, sworn under penalty of perjury and other evidence submitted by Complainant that establishes the facts at least to a prima facie level:
Complainant operates a business selling appliance parts to consumers through its Internet websites. Mr. Kagan created the domain name <appliancepartspros.com> in April of 1999, transferring ownership to Complainant in April 2003.
Complainant, and its predecessor-in-interest, have used the domain name <appliancepartspros.com> in commerce consistently for about 11 years.
Respondent is one of Complainant's chief competitors, and Respondent and Complainant have known of each other.
In November of 2008, Complainant registered APPLIANCEPARTSPROS.COM as a United States Trademark, Registration No. 3,526,659.
In March of 2009 Respondent created the domain name <theappliancepartspro.com>.
In December 2009, Complainant demanded that Respondent cease using the dormant, unused Domain Name and transfer ownership thereof.
In January 2010, Respondent, through its Senior Vice President of Respondent, Mr. D. Seligson, acknowledged Complainant's letter, asking who should be contacted. The President of Complainant, Mr. Kagan called Mr. Seligson. During that conversation, Mr. Seligson said Respondent would transfer the Domain Name to Complainant if Complainant would transfer one of its domain names – <partsearchpro.com> – to Respondent.
Respondent had asked Complainant to sell the <partsearchpro.com> domain name years before, in about 2003. That domain name had been registered in about 2002 by Complainant's predecessor-in-interest, Mr. Kagan, who transferred it to Complainant.
Respondent indicated that if Complainant would not agree to transfer <partsearchpro.com> to Respondent, there was “nothing further he could do”.
Based on the above facts, Complainant contends that the Domain Name <theappliancepartspros.com> and the registered trademark APPLIANCEPARTSPROS.COM are confusingly similar, that the Respondent does not have any rights to or legitimate interests in the Domain Name, and that the registration and use of the Domain Name are in bad faith.
Respondent did not reply to the Complainant's contentions or dispute the facts alleged.
The uncontested facts are sufficient to decide this case and will not be repeated.
The test for confusingly similar is met here. The only difference between the registered mark and the Domain Name is addition of the word “the” to the beginning of the Domain Name. That is at least sufficient for a prima facie finding that there is a likelihood of confusion. In the absence of any evidence to the contrary, the Panel finds confusing similarity between the Complainant's trademark and the Domain Name established.
Pursuant to paragraph 4(a) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the Domain Name.
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if complainant makes out a prima facie case and respondent does not submit a Response. See the answer to question 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions.
Based on the record, this Panel finds that the Complainant has prima facie established that Respondent lacks rights to or legitimate interests in the Domain Name.
Even though properly notified of these proceedings, Respondent has not rebutted Complainant's allegations, nor is there any other evidence on the record that would prove Respondent's rights or legitimate interests in the Domain Name.
The Complainant has therefore satisfied the second element of the paragraph 4(a)(ii) of the Policy.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which are evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy:
(i) circumstances indicating that [Respondent has] registered or [Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name; or
(ii) [Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent has] engaged in a pattern of such conduct; or
(iii) [Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] website or location or of a product or service on your website or location.
In this Panel's view the timing of the registration of the Domain Name, the prior history of the parties, the lack of use of the Domain Name, the absence of assertion of any commercial rights in the Domain Name, that the Domain Name is apparently used only as a lever to extract transfer of another Domain Name from Complainant, in combination, constitute a case of bad faith in accordance with paragraph 4(b)(i) and (iii) of the Policy. A conclusion of bad faith is further supported by a negative inference drawn from the lack of response by the Respondent.
On the basis of the above, the Complainant has satisfied the third element of the paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <theappliancepartspro.com> be transferred to Complainant.
Dated: May 20, 2010