Egiggles.com

The timeline behind egiggles.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 Allison Wing c/o Ali Wing, Inc. v wolfis.com c/o Wolfgang Sauer Claim Number: FA0603000655492 PARTIES Complainant is Allison Wing c/o Ali Wing, Inc. (“Complainant”), represented by Julia Spoor Gard, of Barnes & Thornburg LLP, 11 South Meridian Street, Indianapolis, IN 46204-3535. Respondent is wolfis.com c/o Wolfgang Sauer (“Respondent”), 112 Woodland Dr., Millersburg 44654. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <egiggles.com>, registered with Enom, Inc. 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. Honorable Karl V. Fink (Ret.), as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 10, 2006; the National Arbitration Forum received a hard copy of the Complaint on March 13, 2006. On March 10, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <egiggles.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 March 17, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 6, 2006 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@egiggles.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 12, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), 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 <egiggles.com> domain name is confusingly similar to Complainant’s GIGGLE mark. 2. Respondent does not have any rights or legitimate interests in the <egiggles.com> domain name. 3. Respondent registered and used the <egiggles.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Allison Wing c/o Ali Wing, is the founder, Chief Executive Officer, and Chairman of Ali Wing, Inc. d/b/a GIGGLE. Complainant offers a presorted, edited collection of baby products that meet the highest standards of quality. Complainant has retail stores on both coasts of the United States. Complainant has been using the GIGGLE mark since at least as early as October 2003 in connection with providing baby products. Complainant also has a website at the <egiggle.com> domain name and offers the same high quality products and services through the website as offered at its retail stores. Complainant has been using the <egiggle.com> domain name since at least as early as June 2004. Respondent registered the <egiggles.com> domain name on January 26, 2005. Respondent is using the disputed domain name to divert Internet users to its commercial website that displays links to competing websites that feature products for infants and children. 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 asserts the GIGGLE mark has acquired sufficient secondary meaning to establish common law rights. Complainant bases this assertion on continuous use of the mark in commerce and the Complainant’s association in the minds of the public with Complainant’s products and services, which have been offered since as early as October 2003. The Panel concludes that Complainant has proved that the GIGGLE mark has come to sufficiently identify Complainant as the source of Complainant’s goods sold under the GIGGLE mark. See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also S.A. Bendheim Co., Inc. v. Hollander Glass, FA 142318 (Nat. Arb. Forum Mar. 13, 2003) (holding that the complainant established rights in the descriptive RESTORATION GLASS mark through proof of secondary meaning associated with the mark). Respondent’s <egiggles.com> domain name is confusingly similar to Complainant’s GIGGLE mark because Respondent’s domain name incorporates Complainant’s mark in its entirety and adds the letters “e” and “s” and the generic top-level domain “.com.” The Panel finds that such minor additions to Complainant’s mark do not negate the confusingly similar aspects of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Canadian Tire Corp. v. 849075 Alberta Ltd., D2000-0985 (WIPO Oct. 19, 2000) (finding that the domain names <ecanadiantire.com> and <e-canadiantire.com> are confusingly similar to Canadian Tire’s trademarks); see also Nat’l Geographic Soc’y v. Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to the complainant’s NATIONAL GEOGRAPHIC mark). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has alleged that Respondent does not have rights or legitimate interests in the <egiggles.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). Respondent is using the <egiggles.com> domain name to redirect Internet users to Respondent’s commercial website that features products and services that compete with Complainant. Respondent’s use of a domain name that is confusingly similar to Complainant’s GIGGLE mark to redirect Internet users interested in Complainant’s products to a website that offers similar products and services in competition with Complainant is not a use in connection with a bona fide offering of goods or 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.”); see also Or. State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of law-related books under Complainant's name is not a bona fide offering of goods and services because Respondent is using a mark confusingly similar to the Complainant's to sell competing goods.”). Moreover, Respondent has offered no evidence and there is no evidence in the record suggesting that Respondent is commonly known by the <egiggles.com> domain name. Thus, Respondent has not established rights or legitimate interests in the <egiggles.com> domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent was not commonly known by the disputed domain name nor was the respondent using the domain name in connection with a legitimate or fair use). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent is using the <egiggles.com> domain name to redirect Internet users to Respondent’s commercial website that features goods and services that compete with Complainant. The Panel finds that such competitive use to benefit from Complainant’s mark constitutes disruption and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)). Based on the uncontested evidence presented by Complainant, the Panel infers that Respondent receives click-through fees for diverting Internet users to websites that compete with Complainant. Because Respondent’s domain name includes Complainant’s GIGGLE mark, Internet users accessing Respondent’s domain name may become confused as to Complainant’s affiliation with the resulting websites. Thus, Respondent’s use of the <egiggles.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”). 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 <egiggles.com> domain name be TRANSFERRED from Respondent to Complainant. Honorable Karl V. Fink (Ret.), Panelist Dated: April 25, 2006 Click Here to return to the main Domain Decisions Page. 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Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.