Artisticpursuit.net

The timeline behind artisticpursuit.net

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 Artistic Pursuit LLC v. calcuttawebdevelopers.com Claim Number: FA0701000894477 PARTIES Complainant is Artistic Pursuit, LLC (“Complainant”), represented by James B. Astrachan, of Astrachan Gunst Tomas, P.C., 217 E. Redwood Street, Suite 2100, Baltimore, MD 21202. Respondent is calcuttawebdevelopers.com (“Respondent”), Park Street, Kolkata, II 700042, India. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <artisticpursuit.net>, registered with Go Daddy Software, 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. James A. Carmody, Esq., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on January 23, 2007; the National Arbitration Forum received a hard copy of the Complaint on January 29, 2007. On January 24, 2007, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <artisticpursuit.net> domain name is registered with Go Daddy Software, Inc. and that the Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 February 1, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 21, 2007 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@artisticpursuit.net by e-mail. A Response was received electronically on February 21, 2007 but not in hard copy form. The National Arbitration Forum has therefore deemed the Response deficient pursuant to Supplemental Rule 5(a). Notwithstanding, the Panel elected to consider the Response. On March 1, 2007, 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. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES’ CONTENTIONS A. Complainant 1. Respondent’s <artisticpursuit.net> domain name is confusingly similar to Complainant’s ARTISTIC PURSUIT mark. 2. Respondent does not have any rights or legitimate interests in the <artisticpursuit.net> domain name. 3. Respondent registered and used the <artisticpursuit.net> domain name in bad faith. B. Respondent 1. Respondent does not dispute that the domain name at issue is identical or confusingly similar to Complainant’s ARTISTIC PURSUIT mark. 2. Respondent claims that the domain name at issue was registered before Complainant’s application to register the ARTISTIC PURSUIT with the U.S. Patent & Trademark Office. Respondent does not discuss its own use of the domain name at issue. 3. Respondent, by implication, denies that the domain name at issue was registered in bad faith. FINDINGS The record provided by the parties is sparse. Complainant claims use of the ARTISTIC PURSUIT mark since November 20, 2005 in connection with some sort of business which provides a host of resources for artists at <artisticpursuit.com>. Complainant does not claim common law trademark rights in its mark in so many words, nor is there a claim of secondary meaning, but its Complaint and its USPTO application suggest a first use of the mark in either October or November of 2005. Respondent has not put the issue of Complainant’s rights in the mark at issue. Apparently, Complainant hired Respondent to develop a website featuring the mark at <artisticpursuit.com>, some sort of financial dispute arose between the parties, and Respondent registered the .net version of the mark, which is the domain name at issue. The Response does not put in issue Complainant’s assertion that the domain name at issue is identical to its ARTISTIC PURSUIT mark, but only defends on the grounds that the domain name at issue was registered before Complainant’s trademark application. 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 has filed a trademark registration application with the United States Patent and Trademark Office (“USPTO”) for the ARTISTIC PURSUIT mark (Serial No. 78/933,276 filed July 19, 2006) but does not yet have a registered mark. Nevertheless, a trademark registration is not required by Policy ¶ 4(a)(i) and Complainant can rely on its common law rights to establish rights pursuant to Policy ¶ 4(a)(i). 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 Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the complainant need not own a valid trademark registration for the ZEE CINEMA mark in order to demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides some evidence showing its use of the ARTISTIC PURSUIT mark in commerce by attaching evidence of a website at <artisticpursuit.com>. Complainant’s trademark application lists a first use in commerce date of October 22, 2005, although the text of the Complaint alleges first use a month later. In any event, this use is three months before Respondent’s registration of the disputed domain name. Complainant has established common law rights in the mark pursuant to Policy ¶ 4(a)(i). See Enfinger Dev., Inc. v. Montgomery, FA 370918 (Nat. Arb. Forum Feb. 16, 2005) (finding that the complainant had common law rights in the McMULLEN COVE mark because the complainant provided sufficient evidence that the mark had acquired secondary meaning, including development plans, correspondence with government officials, and newspaper articles featuring the mark); see also Stellar Call Ctrs. Pty Ltd. v. Bahr, FA 595972 (Nat. Arb. Forum Dec. 19, 2005) (finding that the complainant established common law rights in the STELLAR CALL CENTRES mark because the complainant demonstrated that its mark had acquired secondary meaning). As previously noted, Complainant has not offered much to prove rights in the ARTISTIC PURSUIT mark other than a claim in the Complaint and a copy of the <artisticpursuit.com> website. An application to register a trademark is only proof of a claim to the mark. However, in light of the total failure of Respondent to traverse this first element of the Policy, Complainant wins this issue by default. The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and the burden then shifts to Respondent to show it does have rights or legitimate interests. See Document Techs., Inc. v. Int’l Elec. Communc’s Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Respondent is not commonly known by the disputed domain name, nor does it so claim. Respondent does not claim any particular legitimate use of the domain name at issue in connection with a website or that it is licensed to use Complainant’s mark. The Panel holds that Respondent does not have rights or legitimate interests in the disputed domain name according to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum December 16, 2002) (finding that the respondent was not commonly known by the disputed domain names where it maintained the domain name registrations on the complainant’s behalf and then appropriated the disputed domain names for itself, without permission from the complainant). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent apparently registered the disputed domain name to settle a contract dispute with Complainant. Respondent is displaying a website virtually identical to Complainant’s website. Respondent has registered the disputed domain name for the primary purpose of disrupting Complainant’s business, which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See SR Motorsports v. Rotary Performance, FA 95859 (Nat. Arb. Forum Jan. 4, 2001) (finding it "obvious" that the domain names were registered for the primary purpose of disrupting the competitor's business when the parties are part of the same, highly specialized field); see also Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to Complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii). 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 <artisticpursuit.net> domain name be TRANSFERRED from Respondent to Complainant. James A. Carmody, Esq., Panelist Dated: March 8, 2007 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.