Laderalive.com

The timeline behind laderalive.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Ladera Ranch Community Services and DMB Ladera, LLC v. Core Market Research, Inc. c/o Bo Kelleher Claim Number: FA0506000493076 PARTIES Complainants are Ladera Ranch Community Services and DMB Ladera, LLC (collectively, “Complainant”), represented by Leslie C. McKnew, of Morgan, Lewis & Bockius, LLP, One Market, Spear Street Tower, San Francisco, CA 94105. Respondent is Core Market Research, Inc. c/o Bo Kelleher (“Respondent”) 12 Pleasanton Lane, Ladera Ranch, CA 92694. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <laderalive.com>, registered with Primus Telco Pty Ltd d/b/a Primusdomain/Planetdomain. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. James A. Carmody, Esq., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on June 8, 2005; the National Arbitration Forum received a hard copy of the Complaint on June 10, 2005. On June 14, 2005, Primus Telco Pty Ltd d/b/a Primusdomain/Planetdomain confirmed by e-mail to the National Arbitration Forum that the domain name <laderalive.com> is registered with Primus Telco Pty Ltd d/b/a Primusdomain/Planetdomain and that Respondent is the current registrant of the name. Primus Telco Pty Ltd d/b/a Primusdomain/Planetdomain has verified that Respondent is bound by the Primus Telco Pty Ltd d/b/a Primusdomain/Planetdomain 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 June 14, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 5, 2005 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@laderalive.com by e-mail. Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On July 9, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <laderalive.com> domain name is confusingly similar to Complainant’s LADERALIFE mark. 2. Respondent does not have any rights or legitimate interests in the <laderalive.com> domain name. 3. Respondent registered and used the <laderalive.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Ladera Ranch Community Services operates a popular intranet site for the residents of Ladera Ranch community in Orange County, CA under the <laderalife.com> domain name. The website provides residents of Ladera Ranch, CA with information regarding the community, upcoming events, message boards, clubs, and email services. Complainant, DMB Ladera, LLC owns trademark rights in the state of California for the LADERALIFE mark (Reg. No. 59,536 issued August 11, 2004), which licenses the use of the mark exclusively to Ladera Ranch Community Services. In addition, DMB Ladera, LLC has registered the LADERA RANCH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,656,060 issued December 3, 2002). Respondent registered the <laderalive.com> domain name on January 7, 2005. Respondent’s domain name originally resolved to a website offering many of the same services provided on the DMB Ladera intranet site in addition to hyperlinks to various commercial websites. Respondent’s domain name no longer resolves to an active domain name. DISCUSSION 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." 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint."). 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. Identical and/or Confusingly Similar Complainant has sufficiently established rights in the LADERALIFE mark through its registration with the California Secretary of State. See Lee Enters., Inc. v. Polanski, FA 135619 (Nat. Arb. Forum Jan. 22, 2003) (finding evidence that the complainant had established rights in the BILLINGS GAZETTE mark through registration with the Montana and Wyoming state trademark officials); see also Quality Custom Cabinetry, Inc. v. Cabinet Wholesalers, Inc., FA 115349 (Nat. Arb. Forum Sept. 7, 2002) (finding that the complainant’s trademark registrations in Pennsylvania and New Jersey operated as evidence that the complainant had sufficient standing to bring a claim under the UDRP). Respondent’s <laderalive.com> domain name is confusingly similar to Complainant’s LADERALIFE mark. Simply changing the letter “f” to “v” fails to significantly distinguish the domain name from the registered trademark pursuant to Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain names <tdwatergouse.com> and <dwaterhouse.com> are virtually identical to the complainant’s TD WATERHOUSE name and mark). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant asserts Respondent has no rights or legitimate interests in the domain name <laderalive.com>. By failing to submit a response, Respondent has not demonstrated any rights or legitimate interests in the domain name and the Panel construes this as evidence of lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). Respondent is using the confusingly similar <laderalive.com> domain name to operate a website that offers services in direct competition with those offered by Complainant under its registered trademark. In addition, Respondent provides hyperlinks to various commercial websites through which Respondent presumably receives referral fees. Such a competing and diversionary use is not a use in connection with a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”). Furthermore, nothing in the record indicates that Respondent is either commonly known by or has conducted business under the disputed domain name. Rather Respondent’s company, which owns rights to the <laderalive.com> domain name, operates under the name Core Market Research, Inc. Moreover, no evidence has been brought forth showing Respondent had authorization to register domain names featuring any variation of Complainants’ LADERALIFE mark. Therefore, the Panel finds Respondent has not established rights or legitimate interests in the <laderalive.com> domain name under Policy ¶ 4(c)(ii). See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent is using the <laderalive.com> domain name to offer competing services and to divert Internet users to other commercial websites using a system of hyperlinks, through which Respondent presumably earns click-through fees. Because Respondent’s <laderalive.com> domain name is confusingly similar to Complainant’s LADERALIFE mark, consumers accessing Respondent’s domain name may become confused as to Complainant’s affiliation with the resulting website. Therefore, use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent). Furthermore, Respondent registered the <laderalive.com> domain name with actual or constructive knowledge of Complainant’s rights in the LADERALIFE mark as the mark was registered with the California Secretary of State and Respondent is a resident of California. Moreover, the Panel infers that Respondent registered the domain name with actual knowledge of the mark due to the obvious connection between the content and services offered on Respondent’s website with the content and services provided on the Complainant’s website. Respondent’s website, accessed through the <laderalive.com> domain name, even goes so far as to point out the cost difference in website creation and maintenance between Complainant’s website and Respondent site, presenting Respondent’s nearly identical Respondent site as the low-cost, functional alternative. Registration of a domain name confusingly similar to another’s mark despite actual or constructive knowledge of the mark holder’s rights is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <laderalive.com> domain name be TRANSFERRED from Respondent to Complainant. James A. Carmody, Esq., Panelist Dated: July 21, 2005 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.