Planetwitless.com

The timeline behind planetwitless.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 PFIP, LLC v. Vendetta Marketing Claim Number: FA0703000931670 PARTIES Complainant is PFIP, LLC (“Complainant”), represented by Teresa C. Tucker, of Grossman, Tucker, Perreault & Pfleger PLLC, 55 South Commercial Street, Manchester, NH 03101. Respondent is Vendetta Marketing (“Respondent”), 230 Park Ave., Suite 864, New York, NY 10169. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <planetwitless.com>, 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 March 2, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 6, 2007. On March 5, 2007, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <planetwitless.com> domain name is registered with Go Daddy Software, Inc. and that 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 March 7, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 27, 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@planetwitless.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 31, 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. 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 <planetwitless.com> domain name is confusingly similar to Complainant’s PLANET FITNESS mark. 2. Respondent does not have any rights or legitimate interests in the <planetwitless.com> domain name. 3. Respondent registered and used the <planetwitless.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, PFIP, LLC, operates over 130 fitness clubs under the PLANET FITNESS mark in the United States. Complainant has registered the PLANET FITNESS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,698,976 issued March 25, 2003). On November 8, 2006, Respondent registered the <planetwitless.com> domain name. Respondent uses the contested domain name to criticize Complainant’s business and to market its legal services, the Law Offices of Jason Stern. Respondent has been the subject of another proceeding with Complainant, in which the panel ordered the transfer of the <boycottplanetfitness.com> domain name to Complainant. See PFIP, LLC v. Vendetta Marketing, FA 861594 (Nat. Arb. Forum Jan. 18, 2007). 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 Through registration of the PLANET FITNESS mark with the USPTO, the Panel finds that Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also Thermo Electron Corp et al. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (holding that the complainants established rights in marks because the marks were registered with a trademark authority). Even though Complainant has rights in the PLANET FITNESS mark, the <planetwitless.com> domain name is not confusingly similar to this mark. The terms “witless” and “fitness” are completely unrelated and it is not likely that a consumer would confuse the two terms. Respondent’s domain name is therefore sufficiently distinguishable from Complainant’s mark under Policy ¶ 4(a)(i). See Tire Discounters, Inc. v. TireDiscounter.com, FA 679485 (Nat. Arb. Forum June 14, 2006) (“Because the mark is merely descriptive, small differences matter. In the Internet context, consumers are aware that domain names for different websites are often quite similar and that small differences matter.”); see also iLeads.com LLC v. Electronic Marketing Sys., Inc., FA 187636 (Nat. Arb. Forum Oct. 13, 2003) (finding that the <aleads.com> domain name was not confusingly similar to the complainant’s ILEADS.COM mark because the letters “a” and “i” are not close to each other on the keyboard, do not look alike, and are not commonly substituted for each other). Because the <planetwitless.com> domain name is not confusingly similar to Complainant’s registered mark, the Panel finds that Complainant has not satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests/Registration and Use in Bad Faith The Panel does not need to inquire into Respondent’s rights or legitimate interests or registration and use in bad faith, as Complainant has failed to satisfy the first element of the Policy. See Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)); see also Pom Wonderful LLC v. Tara Redavid, FA 846577 (Nat. Arb. Forum Jan. 8, 2007) (deciding not to consider the second and third elements of the Policy after the complainant failed to establish that the disputed domain name was confusingly similar to its mark under the first element of the Policy). DECISION Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. James A. Carmody, Esq., Panelist Dated: April 10, 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.