Vividcams.com

The timeline behind vividcams.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 Vivid Entertainment, LLC v. Digital Pulsar c/o Alex V Client sun001 Claim Number: FA0508000542007 PARTIES Complainant is Vivid Entertainment, LLC (“Complainant”), represented by Paul J. Cambria, of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, 42 Delaware Avenue, Suite 300, Buffalo, NY 14202. Respondent is Digital Pulsar c/o Alex V Client sun001 (“Respondent”), 1539 Platte Street, Denver, CO 80202. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <vividcams.com>, registered with Spot Domain Llc. 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. The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on August 16, 2005; the National Arbitration Forum received a hard copy of the Complaint on August 18, 2005. On August 17, 2005, Spot Domain Llc confirmed by e-mail to the National Arbitration Forum that the <vividcams.com> domain name is registered with Spot Domain Llc and that the Respondent is the current registrant of the name. Spot Domain Llc has verified that Respondent is bound by the Spot Domain Llc 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 August 22, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 12, 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@vividcams.com by e-mail. Respondent failed to timely submit a copy of the Response, as required by ICANN Rule 5(a). However, in its discretion, the Panel will consider the untimely Response. See Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist); Gaiam, Inc. v. Nielsen, FA 112469 (Nat. Arb. Forum July 2, 2002) (“In the interest of having claims decided on the merits and not by default and because Complainant has not been prejudiced in the presentation of its case by the late submission, Respondent’s opposition documents are accepted as timely.”); Strum v. Nordic Net Exch. AB, FA 102843 (Nat. Arb. Forum Feb. 21, 2002) (“[R]uling a Response inadmissible because of formal deficiencies would be an extreme remedy not consistent with the basic principles of due process. . ."). By Order of October 7, 2005, the Panel gave Complainant until October 11, 2005, within which to submit a Reply to Respondent’s Response. Complainant has not submitted a Reply. On September 27, 2005, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant, Vivid Entertainment, LLC, makes the following assertions: 1. Respondent’s <vividcams.com> domain name is confusingly similar to Complainant’s VIVID and VIVID VIDEO marks. 2. Respondent does not have any rights or legitimate interests in the <vividcams.com> domain name. 3. Respondent registered and used the <vividcams.com> domain name in bad faith. B. Respondent, Digital Pulsar, contends: 1. Complainant, Vivid Entertainment, LLC, has failed to provide evidence of ownership of the marks VIVID and VIVID VIDEO. According to Complainant’s exhibits the marks are owned by Vivid Video, Inc. 2. The marks were registered after the domain name. 3. The <vividcams.com> domain name is not confusingly similar to Complainant’s marks because the domain name contains the word “cams” which distinguishes Respondent’s domain name from Complainant’s mark. 4. Complainant’s marks are descriptive and have no secondary meaning. 5. VIVID mark is not exclusive to Complainant as registration of the VIVID mark has been granted to twelve additional entities. 6. Respondent has rights and legitimate interests in respect of the <vividcams.com> domain name. 7. Respondent’s website offers a different product from Complainant, offering a place for amateurs to display their cams. Respondent is not in competition with Complainant. 8. The disputed domain name incorporates common generic terms. 9. Respondent is not using the domain name to divert Internet users from Complainant’s websites. 10. Respondent has established a loyal following in the webcamming community over the last five years. 11. Respondent has not registered or used the <vividcams.com> domain name in bad faith. 12. Respondent has a right to use a descriptive domain name for a product or service it describes. 13. Complainant has not proffered any evidence that the domain name was acquired primarily for the purpose of selling, renting or transferring it to Complainant or to disrupt Complainant’s business or attract customers seeking to purchase its non-competing products. 14. Respondent acquired the <vividcams.com> domain name before Complainant’s marks were registered. In five years of operation, the website has acquired its own goodwill. FINDINGS Complainant claims to be one of the world’s leading producers and providers of “adult” entertainment in various media under the VIVID and VIVID VIDEO marks. Complainant operates a website at <vivid.com> featuring adult entertainment. Complainant redirects traffic from its <vividvideo.com> domain name to the <vivid.com> website. According to Complainant’s exhibits, the marks VIVID and VIVID VIDEO are owned by Vivid Video, Inc. Complainant has not shown any relationship between it and Vivid Video, Inc. Respondent registered the <vividcams.com> domain name on October 3, 2000. DISCUSSION Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.” Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the 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 claims to be the owner of the VIVID and VIVID VIDEO marks. According to Complainant’s exhibits, the marks are owned by Vivid Video, Inc. Complainant has not shown any relationship between it and Vivid Video, Inc. Accordingly, Complainant has failed to show ownership of the registered marks. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also American Information Corporation d/b/a American Information Network v. American Informetrics, Inc., FA 97339 (Nat. Arb. Forum July 19, 2001) (Registration of a mark is prima facie evidence of the registrant’s ownership of the mark). Nor has Complainant produced evidence of secondary meaning. Complainant has failed to establish rights in the VIVID and VIVID VIDEO marks. Since Complainant has failed to establish rights in the VIVID and VIVID VIDEO marks under Policy ¶ 4(a)(i), it is unneccessary to address the other two elements. DECISION Having failed to establish the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED. Accordingly, it is Ordered that the <vividcams.com> domain name NOT BE TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr., Panelist Dated: October 25, 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.