Ladivalatina.com

The timeline behind ladivalatina.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 Jennese Torres v. S Pace Claim Number: FA0702000917069 PARTIES Complainant is Jennese Torres (“Complainant”),106 Sunset Blvd, Bronx, NY 10473, USA. Respondent is S Pace (“Respondent”), One Western Ave #134, Boston, MA 02163. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <ladivalatina.com>, registered with REGISTER.COM, INC. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. Honorable Paul A. Dorf as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 14, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 20, 2007. On February 15, 2007, REGISTER.COM, INC. confirmed by e-mail to the National Arbitration Forum that the <ladivalatina.com> domain name is registered with REGISTER.COM, INC. and that Respondent is the current registrant of the name. REGISTER.COM, INC. has verified that Respondent is bound by the REGISTER.COM, 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 22, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 14, 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@ladivalatina.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On March 19, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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 <ladivalatina.com> domain name is identical to Complainant’s LADIVALATINA.COM mark. 2. Respondent does not have any rights or legitimate interests in the <ladivalatina.com> domain name. 3. Respondent registered and used the <ladivalatina.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Jennese Torres, is the CEO and President of The V. Davis Publishing Company, Inc., which owns the magazine LaDivaLatina.com and does business under Complainant’s LADIVALATINA.COM mark. Complainant’s mark has been used in conjunction with an on-line magazine since at least 2002. Complainant’s magazine with the LADIVALATINA.COM has appeared on national newstands and t-shirts, as well as other merchancise bearing the LADIVALATINA.COM mark. Respondent, S Pace, registered the <ladivalatina.com> domain name on September 23, 2003. Respondent is using the disputed domain name to display advertising links for websites unrelated to Complainant. Additionally, Respondent has offered to sell the domain name to Complainant for $3,200. 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 It is not necessary for Complainant to hold a registered trademark in order to establish rights in the LADIVALATINA.COM mark. Common law rights are sufficient to satisfy 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 British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”). Complainant has established common law rights in its LADIVALATINA.COM mark through extensive and continuous use. Complainant has used the mark for at least five years, since 2002, in conjunction with an online magazine, “LaDivaLatinta.com.” Complainant’s magazine with the LADIVALATINA.COM has appeared on national newstands. Furthermore, t-shirts and other merchancise have been sold bearing the LADIVALATINA.COM mark. Thus, the Panel finds that Complainant has created sufficient secondary meaning in the LADIVALATINA.COM mark to establish common law rights in the mark pursuant to Policy ¶ 4(a)(i). See 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 Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of [KEPPEL BANK] in connection with its banking business, it has acquired rights under the common law.”). Respondent’s <ladivalatina.com> domain name contains Complainant’s LADIVALATINA.COM mark in its entirety without any alterations, omissions, or additions to the mark. Therefore, the Panel finds that Respondent’s <ladivalatina.com> domain name is identical to Complainant’s LADIVALATINA.COM mark pursuant to Policy ¶ 4(a)(i). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding that the respondent’s domain name <charlesjourdan.com> is identical to the complainant’s marks); see also Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the complainant's CROATIA AIRLINES trademark). 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 <ladivalatina.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because of Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain names. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). The Panel finds no evidence in the record suggesting that Respondent is commonly known by the <ladivalatina.com> domain name. The WHOIS information identifies Respondent as “S Pace,” and Complainant has alleged that Respondent has no rights or legitimate interests in the LADIVALATINA.COM mark. The Panel cannot find any other evidence in the record suggesting that Respondent is commonly known by the domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <ladivalatina.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”). Respondent is using the <ladivalatina.com> domain name to attract Internet users to a website that is identical to Complainant’s LADIVALATINA.COM mark, and offers links to unrelated third-party websites. Presumably, Respondent receives referral fees for each redirected Internet user. Thus, Respondent’s use of the domain name to redirect Internet users to unrelated third-party websites, presumably for commercial gain, does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent is currently offering the <ladivalatina.com> domain name for sale and has offered to sell it to Complainant for $3,200. Respondent’s offer to sell its domain name registration for a price that likely far exceeds any out-of-pocket expenses incurred by Respondent evinces bad faith registration and use pursuant to Policy ¶ 4(b)(i). The Panel finds that this evidence supports a finding of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the respondent demonstrated bad faith when he requested monetary compensation beyond out-of-pocket costs in exchange for the registered domain name); see also World Wrestling Fed’n Entm’t., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs). The disputed domain name, <ladivalatina.com>, which is identical to Complainant’s LADIVALATINA.COM mark, is likely to cause confusion among customers searching for Complainant’s products. Specifically, customers may become confused as to the affiliation, endorsement, or sponsorship of the <ladivalatina.com> domain name. Presumably, Respondent is trying to profit from this confusion. The Panel finds that such use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); 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 <ladivalatina.com> domain name be TRANSFERRED from Respondent to Complainant. Honorable Paul A. Dorf, Panelist Dated: March 29, 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.