Sleepsource.com

The timeline behind sleepsource.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 Associated Volume Buyers, Inc. v. Whois ID Theft Protection Claim Number: FA0703000938086 PARTIES Complainant is Associated Volume Buyers, Inc. (“Complainant”), represented by W. Scott Creasman, of Powell Goldstein LLP, 1201 West Peachtree Street, Atlanta, GA 30309. Respondent is Whois ID Theft Protection (“Respondent”), General Delivery, Georgetown KY, Cayman. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <sleepsource.com>, registered with Rebel.com. 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 15, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 16, 2007. On March 19, 2007, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <sleepsource.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.com 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 29, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 18, 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@sleepsource.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 24, 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 <sleepsource.com> domain name is identical to Complainant’s SLEEP SOURCE mark. 2. Respondent does not have any rights or legitimate interests in the <sleepsource.com> domain name. 3. Respondent registered and used the <sleepsource.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Associated Volume Buyers, Inc., is a collective buyer for over 2,200 member entities that are part of its Brand Source network. These entities include Sleep Source, Home Entertainment Source, Mobile Entertainment Source, Gourmet Source, Outdoor Source, and Home Rental Source. Under the SLEEP SOURCE mark, Complainant supplies mattresses to retailers, who in turn provide floor space to market Complainant’s products. Complainant has registered the SLEEP SOURCE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,540,982 issued February 19, 2002, filed March 3, 1999). Respondent’s <sleepsource.com> domain name, which it registered on September 20, 1996, resolves to a website with links such as “Mattresses” and “Bunk Bed” that redirect Internet users to websites selling mattress products in direct competition with Complainant. 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 has registered the SLEEP SOURCE mark with the USPTO. While this trademark registration does not predate Respondent’s registration of the <sleepsource.com> domain name, the Panel finds that Policy ¶ 4(a)(i) does not require Complainant to have registered the mark before the registration of the domain name. See AB Svenska Spel v. Zacharov, D2003-0527 (WIPO Oct. 2, 2003) (holding that the UDRP Policy does not require a complainant to have registered its trademark prior to the respondent’s registration of the domain name under Policy ¶ 4(a)(i) but may prevent a finding of bad faith under Policy ¶ 4(a)(iii)); see also Javacool Software Dev., LLC v. Elbanhawy Invs., FA 836772 (Nat. Arb. Forum Jan. 2, 2007) (holding that a complainant need not show that its rights in its mark predate the respondent’s registration of the disputed domain name in order to satisfy Policy ¶ 4(a)(i)). Thus, Complainant has established rights in the SLEEP SOURCE mark in accordance with Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO). With respect to the identical or confusingly similar prong of Policy ¶ 4(a)(i), Respondent has failed to distinguish the <sleepsource.com> domain name from Complainant’s SLEEP SOURCE mark by incorporating the entire mark, eliminating the space between terms of the mark, and adding the generic top-level domain (“gTLD”) “.com.” Accordingly, the Panel finds that the disputed domain name is identical to Complainant’s SLEEP SOURCE mark under Policy ¶ 4(a)(i). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant’s RED HAT mark because the mere addition of a gTLD was insufficient to differentiate the disputed domain name from the mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Under Policy ¶ 4(a)(ii), Complainant bears the initial burden of making a prima facie case that Respondent lacks rights and legitimate interests in the <sleepsource.com> domain name. If Complainant makes a prima facie case, then the burden shifts to Respondent to prove that it does have rights or legitimate interests. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant under Policy ¶ 4(c), the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires that the complainant must show that the respondent has no rights to or legitimate interests in the subject domain name and that once the complainant makes this showing, the burden of production shifts to the respondent to rebut the complainant’s allegations). In this case, Respondent has failed to take advantage of the opportunity to respond to the Complaint. Consequently, the Panel presumes that Respondent does not have any rights or legitimate interests in the <sleepsource.com> domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). Nevertheless, the Panel will now examine the record to determine if Complainant has satisfied its burden under the factors listed in Policy ¶ 4(c). Respondent’s use of the <sleepsource.com> domain name to display links to websites that compete with Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). The panels in both Or. State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) and Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) concluded that the use of an identical or confusingly similar domain name to divert Internet users to competing websites did not satisfy either Policy ¶ 4(c)(i) or ¶ 4(c)(iii). Hence, the Panel finds that Respondent has failed to show it has rights or legitimate interests under either of these paragraphs of the Policy. The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Complainant holds a trademark registration for the SLEEP SOURCE mark with the United States Patent and Trademark Office (Reg. No. 2,540,982 issued February 19, 2002, filed March 3, 1999) and alleges a first use of the mark in 2000. While Complainant’s trademark registration for the SLEEP SOURCE mark is sufficient to satisfy Policy ¶ 4(a)(i), Respondent registered the <sleepsource.com> domain name on September 20, 1996, four years before Complainant’s first use of the mark. Therefore, it does not appear that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). When a respondent’s domain name registration predates the complainant’s first use of a mark, previous panels have denied the complainant relief under the Policy. See Javacool Software Dev., L.L.C. v. Elbanhawy Invs., FA 836772 (Nat. Arb. Forum Jan. 2, 2007) (holding that bad faith registration and use is a conjunctive requirement and that if the respondent registered the disputed domain name before the complainant first began using its mark, the complainant cannot satisfy Policy ¶ 4(a)(iii) and thus the domain name should not be transferred); see also Trek Bicycle Corp. v. Image G/Ikonographics, FA 852695 (Nat. Arb. Forum Jan. 9, 2007) (“Under the Policy, bad faith use without bad faith registration is insufficient to satisfy the third element of Paragraph 4(a).”); see also Guildline Instruments Ltd. v. Anderson, D2006-0157 (WIPO Apr. 12, 2006) (explicitly requiring that the Respondent both registered and used the domain name in bad faith); see also e-Duction, Inc. v. Zuccarini, D2000-1369 (WIPO Feb. 5, 2001) (“This case thus presents the relatively novel question of whether bad faith use alone, without bad faith registration, is sufficient to justify transfer . . . . because the Policy requires both bad faith use and bad faith registration, the Panel . . . must deny the Complaint.”). Respondent did not register the <sleepsource.com> domain name in bad faith and could not have done so because the domain name was registered before Complainant began using the SLEEP SOURCE mark. There is no proof of any use of the SLEEP SOURCE mark as a common law trademark prior to 2000. The Panel concludes that Complainant has NOT satisfied Policy ¶ 4(a)(iii). DECISION Complainant having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. James A. Carmody, Esq., Panelist Dated: May 3, 2007 Click Here to return to the main Domain Decisions Page. 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