WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Museum of Science v. Pro-Life Domains Inc.
Case No. D2003-0424
1. The Parties
Complainant is Museum of Science, of Boston,United States of America, represented by Hale and Dorr, LLP of United States of America.
Respondent is Pro-Life Domains Inc., of New York, United States of America.
2. The Domain Name and Registrar
The disputed domain name <bostonmuseumofscience.com> ("the Disputed Domain Name") is registered with Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 3, 2003. On June 5, 2003, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. Later, on June 5, 2003, Intercosmos Media Group d/b/a directNIC.com transmitted to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 June 10, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was June 30, 2003. Respondent did not submit any response. Accordingly, the Center notified Respondent of its default on July 1, 2003.
The Center appointed Steven Auvil as the sole panelist in this matter on July 16, 2003. 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.
4. Factual Background
Complainant is a well-known museum located in Boston, Massachusetts. It has operated under the name of Boston Museum of Science or the Museum of Science since approximately 1945. Complainantís educational mission is to stimulate interest and to further the understanding of science and technology, and is known for its hands-on approach to learning. Complainant attracts in excess of one million visitors each year to its facilities in Boston. Complainant is the owner of the domain names <bostonmuseumofscience.org>, <museumofscience.org>, and <museumofscience.net>. These domain names were obtained by Complainant on or about January 18, 2001, November 20, 1996, and January 18, 2001, respectively.
The nature of Respondentís business is uncertain. Respondent registered the Disputed Domain Name on or about March 7, 2002.
5. Partiesí Contentions
Complainant contends that the Disputed Domain Name is identical or confusingly similar to Complainantís name, that Respondent has no rights or legitimate interests in the Disputed Domain Name, and that the Disputed Domain Name was registered and is being used in bad faith. Complainant requests that the Disputed Domain Name be transferred to the Complainant.
The Respondent did not respond to the Complainantís contentions. Accordingly, Respondent did not deny those contentions.
6. Discussion and Findings
To obtain relief, paragraph 4(a) of the Policy requires the Complainant to prove each of the following:
(1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) that the Respondent has no rights or legitimate interest in the domain name; and
(3) that the domain name has been registered and used in bad faith.
In view of Respondentís failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainantís 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.
A. Identical or Confusingly Similar
Complainant has demonstrated prior common law rights in the mark BOSTON MUSEUM OF SCIENCE through longstanding use and widespread recognition in the public. It is well settled that common law rights can provide the basis of a valid complaint under the Policy. See, e.g., Georgia Gulf Corp. v. The Ross Group, WIPO Case No. D2000-0218 (June 14, 2000).
In addition, the Disputed Domain Name is identical or confusingly similar to Complainantís BOSTON MUSEUM OF SCIENCE mark as well as Complainantís registered domain names.
For these reasons, the Panel concludes that the Disputed Domain Name is identical or confusingly similar to a service mark in which Complainant has rights.
B. Rights or Legitimate Interests
Under the Policy, legitimate interests in a domain name may be demonstrated by showing that: (i) before any notice of this dispute, the respondent used, or demonstrably prepared to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; (ii) the respondent has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark at issue. Policy 4(c).
Complainant persuasively argues that Respondent has no rights or legitimate interest in the Disputed Domain Name, and Respondent has not presented any arguments in rebuttal. In this instance, the Panel is free to infer and does infer that Respondent has no such rights or a legitimate interest in the Disputed Domain Name. See, e.g., Pavillion Agency, Inc. v. Greenhouse Agency Ltd., WIPO Case No. D2000-1221 (December 4, 2000).
Moreover, nothing in the record suggests that Respondent has at any time used the Disputed Domain Name in connection with a bona fide offering of goods or services, that Respondent is commonly known by the Disputed Domain Name, or that Respondent is making a legitimate noncommercial or fair use of the domain name.
For these reasons, the Panel concludes that the Respondent has no rights or legitimate interest in the Disputed Domain Name.
C. Registered and Used in Bad Faith
"When the name of a famous museum is registered as a domain name by anyone other than the museum itself, and the registrant provides no evidence of why the domain name was registered, the only inference permitted is that the domain name was registered in bad faith." Brooklyn Institute of Arts and Sciences v. Fantastic Sites, Inc. , FA0009000095560 (Nat. Arb. Forum November 2, 2000). The Panel finds that the same inference is appropriate here.
Moreover, nothing in the record demonstrates a bona fide intent on the part of Respondent in registering or using the Disputed Domain Name. First, Respondent registered the Disputed Domain Name well after the Complainant acquired rights in the BOSTON MUSEUM OF SCIENCE mark and secured related domain name registrations. Second, at all relevant times, Complainantís museum has been well known throughout the United States and abroad, as evidenced by newspaper articles submitted by Complainant. Third, there is no evidence in the record suggesting Respondent has ever made a bona fide commercial or noncommercial use of the Disputed Domain Name. Fourth, the Disputed Domain Name is and has been offered for sale at a price well in excess of Respondentís out-of-pocket expenses to acquire same. Fifth, Respondentís limited use of the Disputed Domain Name is causing and will continue to cause a likelihood of confusion as to source, sponsorship, or affiliation with Complainant. All of these factors demonstrate Respondentís bad faith in registering the Disputed Domain Name. See The Field Museum of Natural History v. Barry, FA 0205000114354 (Nat. Arb. Forum June 28, 2002).
For these reasons, the Panel concludes that the bad faith element of the Policy is satisfied.
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, <bostonmuseumofscience.com> be transferred to the Complainant.
Dated: July 31, 2003