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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Young Life v. Peter Branelly, Netsol Ltd.

Case No. DNU2007-0002

 

1. The Parties

The Complainant is Young Life of Colorado Springs, Colorado, United States of America, represented by The Gigalaw Firm, Douglas M. Isenberg, LLC, United States of America.

The Respondent is Peter Branelly, Netsol Ltd. of Tortola, Virgin Islands, United Kingdom of Great Britain and Northern Ireland.

 

2. The Domain Name and Registrar

The disputed domain name <younglife.nu> is registered with Key-Systems GmbH dba domaindiscount24.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 16, 2007. On April 17, 2007, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the domain name at issue. On April 18, 2007, Key-Systems GmbH dba domaindiscount24.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 ICANN Uniform Domain Name Dispute Resolution Policy adopted by the registration authority of .NU (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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 2, 2007. In accordance with paragraph 5(a) of the Rules, the due date for Response was May 22, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 24, 2007.

The Center appointed Brigitte Joppich as the sole panelist in this matter on June 11, 2007. 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 paragraph 7 of the Rules.

 

4. Factual Background

The Complainant is a non-profit organization established in 1938, whose mission is “introducing adolescents to Jesus Christ and helping them grow in their faith”. Today, the Complainant operates programs in nearly 4,500 schools and other outreach locations around the world. In 2006, it had total revenues of nearly $200 million.

The Complainant owns numerous trademark registrations worldwide that consist of the term YOUNGLIFE, including a federal registration YOUNGLIFE in the United States (reg. no. 2,630,111) with a priority of March 1994 and a Community trademark YOUNGLIFE (reg. no. 003367893) with a priority of September 2003 (the “YOUNGLIFE Trademarks”).

Respondent registered the domain name <younglife.nu> on January 17, 2006. The disputed domain name points to a website with pornographic content.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are given in the present case:

(i) The domain name is identical to the YOUNGLIFE Trademarks.

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name for several reasons: The Complainant has never in any way authorized the Respondent to register or use any of the YOUNGLIFE Trademarks. The Respondent has never used, or made preparations to use, the domain name or any name corresponding to the domain name in connection with a bona fide offering of goods or services, the Respondent is rather using the domain name in connection with a hard-core pornographic website. Moreover, to the Complainant’s knowledge, the Respondent is not commonly known by the name “Young Life” nor a variation thereof. Finally, the Respondent is not making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the service marks at issue.

(iii) The domain name was registered and is used in bad faith by the Respondent in order to prevent the Complainant from reflecting the YOUNGLIFE Trademarks in a corresponding domain name. The Respondent has engaged in a pattern of such conduct, primarily for the purpose of disrupting the Complainant’s business. Finally, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the YOUNGLIFE Trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service on the Respondent’s website.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements are present:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and

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

A. Identical or Confusingly Similar

The disputed domain name fully incorporates the YOUNGLIFE Trademarks.

Furthermore, it is well established that the specific top level domain name is not an element of distinctiveness taken into consideration when evaluating the identity and similarity of the complainant’s trademark and the disputed domain name (cf. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No.  D2000-1525; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374).

The domain name is therefore identical to a trademark in which the Complainant has rights and the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the Respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

(i) before any notice to the respondent of the dispute, the use by the respondent 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) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the service marks at issue.

The Respondent did not file a Response in this proceeding. Therefore, the Complainant’s assertions that the Respondent lacks rights and legitimate interests stand unrefuted. Based on the evidence before the Panel, the Respondent apparently did not make any bona fide offering of goods or services in connection with the domain name and is neither commonly known by the domain name nor contends to make a legitimate non-commercial or fair use of the domain name.

Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests under paragraph 4(a)(ii) and (c) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including

(ii) the 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 the respondent has engaged in a pattern of such conduct; or

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

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent’s website or location or of a product or service on its website or location.

The Panel is convinced that the Respondent registered the domain name in bad faith for the following reasons: the first of the YOUNGLIFE Marks was registered as early as 1944, and the Complaint is operating programs in 4,500 schools around the world – the YOUNGLIFE Marks are therefore well established and widely known. The Panel is aware that the term “young life” may be considered as descriptive or generic under certain circumstances, however, the Complainant provided evidence that the Respondent registered numerous domain names identical or confusingly similar to third parties’ trademarks, most of which could be considered as being of a generic nature, such as <southpark.nu> (cf. U.S. trademark registration 2,222,409 for SOUTH PARK, owned by Comedy Partners), <sandas.nu> (cf. U.S. trademark registration 2,604,506 for SANDA, owned by Sanda Corporation), <juicy.nu> (cf. U.S. trademark registration 3,050,162 for JUICY, owned by Best Cellars Inc.), <anydvd.de> (cf. U.S. trademark registration 3,113,633 for ANYDVD, owned by Elaborate Bytes AG) and <deluxeclassic.com> (cf. U.S. trademark registration 2,714,728 for BIG DELUXE CLASSICS, owned by The Pillsbury Company). The Respondent appears to carefully select trademarks with a low level of distinctiveness to incorporate them into corresponding domain names and to then link these to sites with pornographic or erotic content in order to profit from the value of the underlying trademarks. In view of this pattern it is highly unlikely that the Respondent registered the above cited domain names without being fully aware of the respective third party’s rights. Therefore, the Panel is convinced that the Respondent also registered the disputed domain name in bad faith.

Moreover, the fact that the disputed domain name is identical to the Complainant’s YOUNGLIFE Marks, the absence of a legitimate interest of the Respondent in the domain name, and the use of the domain name to resolve to a pornographic website cumulatively support an inference of bad faith use (cf. Six Continents Hotels, Inc. v. CredoNIC.com / Domain For Sale, WIPO Case No. D2005-0755). This is generally valid not only for trademarks completely unrelated to the domain name in question (cf. Tjдnstemдnnens Centralorganisation / TCO v. Netsol Ltd., WIPO Case No. DNU2005-0005), but must be found also with regard to domain names like <younglife.nu> that tend to be generic while not having any pornographic or erotic connotation as such (cf. Caledonia Motor Group Limited v. Amizon, WIPO Case No. D2001-0860). Even though a user who arrives at the pornographic site may promptly conclude that it is not what he or she was originally looking for, the registrant has already succeeded in its purpose of using the mark to attract the user with a view to commercial gain (cf. Bass Hotels and Resorts v. Mike Rodgerall, WIPO Case No. D2000-0568; F. Hoffmann-La Roche AG v. Den, WIPO Case No. D2006-0182). The inference of bad faith use is finally supported in this case by various additional circumstances: given the Complainant’s stated mission, the Respondent’s use of the domain name in connection with a pornographic website has the probable effect of doing particular harm to the Complainant’s reputation and tarnishing its business and its valuable marks in an aggravated manner (cf. Angus Sholto-Douglas, Kwandwe Private Game Reserve v. Sergey Fedorov, WIPO Case No. D2006-1184; Society of St. Vincent de Paul, Council of the United States v. Alex Yip, WIPO Case No. D2004-0121). Moreover, the Respondent Netsol Ltd. of British Virgin Islands was ordered to transfer “.nu” domain names to the respective complainant in at least two earlier UDRP proceedings, where registration and use in bad faith were established on the basis on the pornographic content of the website under the disputed domain names (cf. Tjдnstemдnnens Centralorganisation / TCO v. Netsol Ltd., WIPO Case No. DNU2005-0005; Huge Fastigheter AB v. Netsol Ltd., WIPO Case No. DNU2005-0002). The Respondent therefore acted in a pattern of preventing owners of a trademark or service mark from reflecting their mark in a corresponding domain name as required under paragraph 4(b)(ii) of the Policy.

On this evidence, the Panel finds bad faith proven under paragraph 4(b)(ii), (iii) and (iv) of the Policy. As a result, the Complainant has also satisfied the requirements of paragraph 4(a)(iii) of the Policy.

 

7. Decision

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 <younglife.nu> be transferred to the Complainant.

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Brigitte Joppich
Sole Panelist

Dated: June 25, 2007