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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Nobel Learning Communities, Inc. v. Wen Quan

Case No. D2005-1308

 

1. The Parties

Complainant is Nobel Learning Communities, Inc. (“Complainant”), a corporation incorporated under the laws of the State of Delaware, with a principal place of business located at West Chester, Pennsylvania, United States of America, represented by Akin, Gump, Strauss, Hauer & Feld, Washington, DC, United States of America.

Respondent is Wen Quan (“Respondent”), an individual located at San Francisco, California, United States of America.

 

2. The Domain Name and Registrar

The domain name at issue is <campzone.com> (the “Domain Name”). The registrar is GoDaddy Software (the “Registrar”).

 

3. Procedural History

On December 16, 2005, the WIPO Arbitration and Mediation Center (the “Center”) received a copy of the Complaint of Complainant via email. On December 19, 2006, the Center received hardcopy of the Complaint. On December 23, 2005, the Center sent an Acknowledgment of Receipt of Complaint to Complainant.

On December 20, 2005, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On December 20, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. The Center verified that the 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”).

On January 3, 2006, the Center sent a Notification of Complaint and Commencement of Administrative Proceeding to the Respondent together with copies of the Complaint, with a copy to the Complainant. This notification was sent by the methods required under paragraph 2(a) of the Rules.

On February 6, 2006, the Center advised Respondent that it was in default for failing to file its Response. No Response has been received.

On February 15, 2006, after the Center received a completed and signed Statement of Acceptance and Declaration of Impartiality and Independence from Richard W. Page (the “Panel”), the Center notified the parties of the appointment of a single-arbitrator panel consisting of the Panel.

 

4. Factual Background

Complainant is one of the largest non-sectarian operators of private schools and educational programs with numerous learning centers located throughout the United States. For over two decades, Complainant has been offering a wide range of educational services and products including childcare services, preschool, elementary school, school for students with learning challenges, summer programs, and products that support before and after school programs and summer day camps.

In particular, since at least as early as January 31, 2000, long prior to the November 11, 2003 registration date of the Domain Name by Respondent, Complainant has been operating the CAMP ZONE summer camps. Operated by a staff and assistants hired by Complainant, CAMP ZONE offers educational and other recreational and learning activities and programs for youths, including: sports, nature exploration and science programs, arts and crafts, field trips, music, swimming, team-building activities, specialty camps, and other special events and programs for the participants.

Complainant is the owner of valid and subsisting registrations in the CAMP ZONE (the “Trademark”) U.S. No. 2,480,869 issued August 21, 2001. Complainant has continuously used the Trademark to identify the summer camp services rendered by Complainant. Respondent registered the Domain Name on November 11, 2003.

 

5. Parties’ Contentions

A. Complainant’s contentions

i. Complainant contends that it has a registration of the Trademark CAMP ZONE, that its trademark registration is valid and subsisting, and that it serves as prima facie evidence of its ownership and the validity of the Trademark. 15 U.S.C. § 1115.

ii. Complainant argues that the Domain Name is confusingly similar to the Trademark, pursuant to Paragraph 4(a)(i) of the Policy, because it wholly incorporates the Trademark with the addition of the required extension “.com.”

iii. Complainant contends that Respondent has no rights or legitimate interests in the Domain Name, because Respondent has no trademark rights and is making no bona fide use of the Domain Name.

iv. Complainant contends that Respondent registered and is using the Domain Name in bad faith in violation of Paragraph 4(a)(iii).

Complainant argues that the Respondent registered and has used the Domain Name primarily for the purpose of diverting unsuspecting Internet users seeking information on Complainant’s CAMP ZONE summer camp programs to an unrelated miscellaneous advertising portal containing links to goods and services, which neither originate from nor are related to Complainant.

Complainant further alleges that Respondent’s actions have prevented Complainant from registering the Domain Name. Complainant is currently unable to use a valuable marketing tool.

B. Respondent’s contentions

The Respondent has not submitted a Response and has not otherwise participated in this proceeding.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall 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.”

Because both the Complainant and Respondent are domiciled in the United States and United States courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States. Tribeca Film Center, Inc. v. Lorenzo Brusasco-Mackenzie, WIPO Case No. D2000-1772, n. 3.

Failure to File a Response

A respondent is not obliged to participate in a domain name dispute proceeding, but if it were to fail to do so, asserted facts that are not unreasonable would be taken as true and the respondent would be subject to the inferences that flow naturally from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Hewlett-Packard Company v. Full System S.a.S., NAF Case No. FA94637; David G. Cook v. This Domain is For Sale, NAF Case No. FA94957 and Gorstew Jamaica and Unique Vacations, Inc. v. Travel Concierge, NAF Case No. FA94925.

Even though Respondent has failed to file a Response or to contest Complainant’s assertions, the Panel will review the evidence proffered by Complainant to verify that the essential elements of the claims are met.

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

i) 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,

ii) that the Respondent has no legitimate interests in respect of the domain name; and,

iii) that the domain name has been registered and is being used in bad faith.

Enforceable Trademark Rights

Complainant contends that it has a registration in the Trademark and that its trademark registration is valid and subsisting and serves as prima facie evidence of its ownership and the validity of the CAMP ZONE Trademark. 15 U.S.C. § 1115.

Panel decisions have held that 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 presumption. See, e.g., EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047. It is the Panel's belief that Respondent has not met its burden.

Respondent has not contested the assertions by Complainant that it has a valid registration in the Trademark. The Panel finds that Complainant, for purposes of this proceeding, has enforceable rights in the Trademark.

Identity or Confusing Similarity

Complainant further contends that the Domain Name is identical with and confusingly similar to the Trademark pursuant to the Policy paragraph 4(a)(i).

Respondent has not contested the assertions by Complainant that the Domain Name is identical with and confusingly similar to the Trademark.

As numerous courts and prior UDRP panels have recognized, the incorporation of a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to the complainant’s registered mark. See Paccar Inc. v. Telescan Technologies, L.L.C., 115 F. Supp. 772 (E.D. Mich. 2000) (finding that <peterbuilttrucks.com>, <kenworthtrucks.com> and similar domain names are not appreciably different from the trademarks PETERBUILT and KENWORTH); Quixar Investments Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253 (finding that QUIXTAR and <quixtarmortgage.com> are legally identical). The addition of other terms in the domain name does not affect a finding that the domain name is identical or confusingly similar to the Complainant’s registered trademark.

The addition of the phrase “.com” is non-distinctive because it is a gTLD required for registration of a domain name. Therefore, the Panel finds that the Domain Name is confusingly similar to the CAMP ZONE Trademark pursuant to the Policy paragraph 4(a)(i).

Rights or Legitimate Interests.

Complainant contends that Respondent has no rights or legitimate interests in the Domain Name pursuant to the Policy, paragraph 4(a)(ii). Respondent has not contested Complainant’s contentions.

Respondent has no relationship with or permission from Complainant for the use of the Trademark.

The Policy, paragraph 4(c) allows three nonexclusive methods for the Panel to conclude that Respondent has rights or a legitimate interest in the Domain Name:

(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Complainant contends that Respondent has no rights or legitimate interests in the Domain Name, because Respondent has no trademark rights and is making no bona fide use of the Domain Name. Based on the case file, the Complainant has sustained its burden of coming forward with evidence that the Respondent lacks rights to or legitimate interests in the Domain Name. Respondent has not refuted Complainant’s contentions.

Therefore, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name pursuant to the Policy, paragraph 4(a)(ii).

Bad Faith

Complainant contends that Respondent registered and is using the Domain Name in bad faith in violation of the Policy, paragraph 4(a)(iii).

The Policy, paragraph 4(b) sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of domain names:

(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or

(ii) you have 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 you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product

Complainant argues that the Respondent registered the Domain Name primarily for the purpose of diverting unsuspecting Internet users seeking information on Complainant’s CAMP ZONE summer camp programs to an unrelated miscellaneous advertising portal containing links to goods and services, which neither originate from nor are related to Complainant.

Complainant further alleges that Respondent’s actions have prevented Complainant from registering the Domain Name. Complainant is currently unable to use a valuable marketing tool.

The Panel found above that the Domain Name is identical with and confusingly similar to the Trademark pursuant to the Policy, paragraph 4(a)(i). Nothing in the record suggests a non-commercial use.

Therefore, the Panel additionally finds that this evidence is sufficient to establish the necessary elements of bad faith under the Policy, paragraph 4(b)(iv) and that Respondent registered and used the Domain Name in bad faith pursuant to the Policy, paragraph 4(a)(iii).

 

7. Decision

The Panel concludes (a) that the Domain Name <campzone.com> is confusingly similar to Complainant’s registered Trademark CAMP ZONE; (b) that Respondent has no rights or legitimate interests in the Domain Name; and (c) that Respondent registered and used the Domain Name in bad faith. Therefore, pursuant to paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to Complainant.


Richard W. Page
Sole Panelist

Dated: March 4, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1308.html

 

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