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Toastmasters Domain DisputeToastmasters Domain DisputeSubjects > Computers > Internet > Domain Names > [Domain Disputes]?Create
Toastmasters International v. Bealo Group S.A.
Claim Number: FA0307000167968
The domain name at issue is <toastmastersd57.org>, registered with Online NIC.
The Honorable Charles K. McCotter?Create, Jr. (Ret.) as Panelist.
On July 9, 2003, Online NIC confirmed by e-mail to the Forum that the domain name <toastmastersd57.org> is registered with Online NIC and that Respondent is the current registrant of the name. Online NIC has verified that Respondent is bound by the Online NIC 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 July 15, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 4, 2003 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@toastmastersd57.org 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 August 13, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter?Create, Jr. (Ret.) 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.
1. Respondent’s <toastmastersd57.org> domain name is confusingly similar to Complainant’s TOASTMASTERS mark.
2. Respondent does not have any rights or legitimate interests in the <toastmastersd57.org> domain name.
3. Respondent registered and used the <toastmastersd57.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent, Bealo Group S.A., registered the <toastmastersd57.org> domain name on June 24, 2001, and is not licensed or authorized to use Complainant’s TOASTMASTER mark for any purpose. Upon arriving at the disputed domain name, Internet users are subjected to an advertisement for pills designed to increase the size of the male member, with a hyperlink to the <natural-penis-enlargement-now.com> domain name prominently displayed.
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.
Respondent’s <toastmastersd57.org> domain name is confusingly similar to Complainant’s TOASTMASTERS mark. The addition of the alphanumeric string “d57” does not distort the fact that the dominant feature of the disputed domain name is Complainant’s TOASTMASTERS mark, and does not prevent a finding of confusing similarity with the mark. See Magnum Piering, Inc. v. Mudjackers, D2000-1525 (WIPO Jan. 29, 2001) (holding that confusing similarity under the Policy is decided upon the inclusion of a trademark in the domain name rather than upon the likelihood of confusion test under U.S. trademark law); see also Am. Online, Inc. v. iDomainNames?Create.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that Respondent’s domain name <go2AOL.com> was confusingly similar to Complainant’s AOL mark).
Accordingly, the Panel finds that the <toastmastersd57.org> domain name is confusingly similar to Complainant’s TOASTMASTERS mark under Policy ¶ 4(a)(i).
Respondent received no license or authorization by Complainant to use the TOASTMASTERS mark in a domain name, and there is no other evidence before the Panel indicating that Respondenet was ever “commonly known by” the disputed domain name. Hence, the Panel finds Policy ¶ 4(c)(ii) inapplicable to Respondent. See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).
Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <toastmastersd57.org> domain name under Policy ¶ 4(a)(ii).
The Panel thus finds that Respondent registered and used the <toastmastersd57.org> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.
Accordingly, it is Ordered that the <toastmastersd57.org> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter?Create, Jr. (Ret.), Panelist
Dated: August 25, 2003
Subjects > Computers > Internet > Domain Names > [Domain Disputes]?Create
See also http://www.arb-forum.com/domains/decisions/167968.htm
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