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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kingpin Media, Inc. v. Tim Bartley
Case No. D2008-0179
1. The Parties
Complainant is Kingpin Media, Inc., of Woodstock, Georgia, United States of America, represented by Weston, Garrou, DeWitt & Walters, United States of America.
Respondent is Tim Bartley, of West Bend, Wisconsin, United States of America.
2. The Domain Name and Registrar
The disputed domain name <thefeedingtube.com> is registered with Fabulous.com PTY Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2008. On February 6, 2008, the Center transmitted by email to Fabulous.com PTY Ltd. a request for registrar verification in connection with the disputed domain name. On February 8, 2008, Fabulous.com PTY Ltd. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on February 8, 2008. The Center verified that the Complaint together with the amendment to 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 February 13, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 4, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 6, 2008.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on March 20, 2008. 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 uses the mark “The-Feeding-Tube” in connection with memberships to adult entertainment websites, and advertising of an erotic nature. Complainant has used its mark in connection with its adult entertainment website on the Internet continuously since 2005. Complainant owns the domain name <the-feeding-tube.com>. Complainant’s website has received more than 17 million visits, and more than 1.5 billion hits in the past 12 months. Complainant’s website has business relationships with 140 other websites, all of which advertise on the Complainant’s website.
5. Parties’ Contentions
Complainant contends that the disputed domain name is confusingly similar to its common law trademark, “The-Feeding-Tube”, that Respondent lacks any legitimate rights or interests in the disputed domain name, and that Respondent has registered and used the disputed domain name in bad faith.
Respondent did not file a Response to Complainant’s contentions.
6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in Paragraph 4(a) of the Policy have been satisfied, namely:
(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the domain name; and
(iii) the domain name has been registered and used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to 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”.
A. Identical or Confusingly Similar
Complainant submits the declaration of its owner with sales figures for 2006, 2007, and a printout of Internet traffic for the website at the disputed domain name for the period from January 2007 to January 2008. Taken together, these satisfy the Panel that Complainant has sufficient trademark rights under the Policy. The disputed domain name <thefeedingtube.com> incorporates Complainant’s common law “The-Feeding-Tube” trademark in its entirety, with the exception of the hyphens between the words. The hyphens do not add any-distinctive element and do not avoid confusing similarity with Complainant’s mark.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
B. Rights or Legitimate Interests
Complainant states that Respondent is not affiliated or related to Complainant in any way, nor is Respondent licensed by Complainant or otherwise authorized to use Complainant’s mark.
There is no evidence before the Panel to establish that Respondent is generally known by the disputed domain name or that Respondent has acquired any trademark or service mark rights in that name or mark.
Respondent’s website located at the disputed domain name prominently displays the mark THE-FEEDING-TUBE.com in the same logo and layout as used by Complainant on its website at the disputed domain. Respondent’s website at the disputed domain has also copied verbatim text from Complainant’s website.
On the basis of the present record, Respondent is not using the disputed domain name in a bona fide manner. Instead, Respondent is apparently using the disputed domain name to attract Internet users to a website purporting to offer services that are similar to those of Complainant. Respondent’s use of the disputed domain name for such purposes is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name. Respondent has not put forward any evidence that would rebut Complainant’s case or support a finding that it has rights or legitimate interests in the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, section 2.1 (available at: “www.wipo.int/amc/en/domains/search/overview/index.html”).
In light of the foregoing, the Panel finds that Respondent has no rights or legitimate interests with regard to the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the disputed domain name in bad faith:
(i) circumstances indicating that Respondent has registered or 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 the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s 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 Respondent’s website or location of a product or service on Respondent’s website or location.
It should be noted that the circumstances of bad faith are not limited to the above.
Though Complainant has not specifically alleged bad faith registration, the affidavit of Complainant’s owner that its website (and thus its common law mark) began in 2005, in conjunction with the publicly available WhoIs showing that the disputed domain name was created in 2006 lead the Panel to conclude (as further shown below) that the disputed domain name was registered in bad faith.
In the present case, it is apparent that the disputed domain name is being deliberately used for commercial gain to attract Internet users to Respondent’s website based on a likelihood of confusion with Complainant’s mark. The evidence of Respondent’s direct copying of Complainant’s logos, layout and text from Complainant’s website lead to the inevitable conclusion that Respondent registered and is using the disputed domain name with actual knowledge of Complainant’s rights.
Accordingly, on the present record the Panel finds the disputed domain name to be registered and used in bad faith.
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, <thefeedingtube.com> be transferred to the Complainant.
Lynda J. Zadra-Symes
Dated: April 4, 2008