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and Mediation Center
Ariat International, Inc. v. Domain Purchase, NOLDC, Inc.
Case No. D2006-0825
1. The Parties
The Complainant is Ariat International, Inc., Union City, California, United States of America, represented by Cooley Godward, LLP, United States of America.
The Respondent is Domain Purchase, NOLDC, Inc., New Orleans, Louisiana, United
States of America.
2. The Domain Name and Registrar
The disputed domain name <ariat.org> 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 29, 2006. On June 29, 2006, 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. On June 29, 2006, Intercosmos Media Group d/b/a directNIC.com 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, 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 the Respondent of the Complaint, and the proceedings commenced on July 11, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 31, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 3, 2006.
The Center appointed Lynda J. Zadra-Symes as the sole
panelist in this matter on August 15, 2006. 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 has used the marks ARIAT and ARIAT and Shield Design continuously since May 1991 in connection with equestrian and western footwear and apparel. Complainant owns numerous U.S. U.S. trademark registrations for the marks ARIAT and ARIAT and Shield Design, including Registration No. 1,937,391, issued November 21, 1995, Registration No. 3,060,315, issued February 21, 2006, Registration No. 1,755,366, issued March 2, 1993, and Registration No. 2,487,753, issued September 11, 2001.
Complainant also owns numerous trademark registrations for the ARIAT and ARIAT and Shield Design marks in other countries, including Argentina, Australia, Brazil, Canada, Chile, China, Colombia, Egypt, European Union, France, Germany, Hong Kong (SAR of China), India, Indonesia, Israel, Ireland, Italy, Japan, Republic of Korea, Mexico, Paraguay, Peru, Philippines, Portugal, South Africa, Spain, Switzerland, Taiwan (Province of China), United Kingdom, and Uruguay.
Many of Complainant’s registrations issued several years before Respondent registered the domain name <ariat.org> in 2004.
In 2004, Respondent introduced its ariat.org website which references categories of products offered by Complainant and also points to web sites that offer products in competition with Complainant’s products. The home page on Respondent’s website indicates that it is “under construction.” The web site features “Sponsored Links,” all of which incorporate the ARIAT trademark and actively market boots and other shoes to online consumers.
Other links on the home page of the “www.ariat.org” web site leads to other web pages that display numerous advertising links to other third parties’ web sites offering a variety of products or services for sale. Some of these third party links refer to products that are directly competitive with Complainant’s products.
On May 19, 2006, Complainant sent a cease and desist
letter via email and Federal Express courier to Respondent, requesting that
Respondent cease all use of the domain name and the trademark ARIAT and transfer
the domain name to Complainant by May 25, 2006. Respondent did not respond to
5. Parties’ Contentions
The following facts are derived from the Complainant and its annexed documents. The Respondent did not respond to the Complaint and has not contested any of these facts.
Complainant designs, manufactures and sells equestrian and western footwear and apparel for men, women and children. ARIAT-branded products are sold in the US and internationally through over 4,000 retail outlets, as well as through numerous authorized online retailers. Complainant operates a website at www.ariat.com.
Complainant contends that the disputed domain name <ariat.org> is identical to Complainant’s registered trademark and company name, ARIAT, and is also identical to the dominant portion of Complainant’s ARIAT and Shield Design mark. Complainant further contends that Respondent has no rights or legitimate interests in the domain name, and is causing a likelihood of consumer confusion by displaying click-through links and advertising on its website using the ARIAT trademarks. These Sponsored Links also direct online consumers to third party retailer sites that sell Ariat and Ariat-competitor footwear. Complainant further contends that Respondent has registered and used the domain name in bad faith for the purpose of selling, renting or otherwise transferring the domain name and that Respondent has a pattern of such conduct, as demonstrated by numerous prior UDRP decisions.
The Respondent did not respond to the Complainant’s
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that 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 rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name incorporates Complainant’s registered ARIAT
mark in its entirety. In considering the similarity between the domain name
and the trademark, it is well accepted that the gTLD may be disregarded. See,
e.g. Vat Holding v. Vat.Com, WIPO Case
The Panel finds that the disputed domain name is identical to and confusingly similar with Complainant’s registered ARIAT mark.
B. Rights or Legitimate Interests
Respondent is not a distributor or licensee of Complainant. Complainant has never given its permission or consent to Respondent to use Complainant’s ARIAT trademark. Complainant has used the ARIAT mark for almost 15 years, and it is highly likely that Respondent had actual knowledge of Complainant’s mark before registering the domain name. There is no indication that Respondent is known by the domain name, and the domain name is not being used for a non-commercial purpose. There is no evidence in the record indicating that Respondent could claim any rights to the trademark ARIAT.
The Panel finds that Respondent does not have any rights or legitimate interests in the domain name and that Complainant has satisfied its burden of proof under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Respondent appears to derive revenue from the click-through links and advertising
on its web site. Respondent’s advertising links on the web site located
at the domain name are based on Complainant’s ARIAT trademarks and products.
These links lead Internet users to goods and services that compete with Complainant’s
own products. Respondent’s website is designed to mislead Internet users
so that Respondent may gain “click-through” advertising revenue
when Internet visitors visit the competitor web sites. Thus, Respondent has
registered the domain name primarily for the purpose of attracting Internet
users who visit the website “www.ariat.org“ instead of Complainant’s
official website at “www.ariat.com“.
In all likelihood, it would appear, that Respondent had actual knowledge of Complainant’s trademark rights before registering the domain name in 2004. Respondent’s web site contains Sponsored Links containing the ARIAT mark that link to third party sites selling products directly competitive to Complainant’s products. In addition, Respondent has listed the domain name for purchase by indicating in the “Registrant Name” section of the WHOIS information the words “Domain Purchase.” This is evidence that Respondent has registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration.
Finally, Respondent is a serial cybersquatter, as demonstrated by numerous
UDRP decisions finding that Respondent had registered and used various domain
names in bad faith. Those decisions include Accor v. NOLDC, Inc., WIPO
Case No. D2005-0016, Dr. Ing h.c. F. Porsche AG v. NOLDC, Inc. et al.,
WIPO Case No. D2005-0890, Teachers
Insurance and Annuity Association of America v. NOLDC, Inc. et al, WIPO
Case No. D2005-1226, and Joseph Phelps Vineyards LLC v. NOLDC, Inc. et
al, WIPO Case No. D2006-0292.
The Panel concludes that Complainant has met its burden of establishing Respondent’s
bad faith registration and use of the domain name.
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, <ariat.org> be transferred to the Complainant.
Lynda J. Zadra-Symes
Dated: August 29, 2006