Sabredefense.com

The timeline behind sabredefense.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 Security Equipment Corporation v. Security Equipment Corporation Claim Number: FA0704000960243 PARTIES Complainant is Security Equipment Corporation (“Complainant”), represented by Glenn K. Robbins, of Spencer Fane Britt & Browne LLP, 1 North Brentwood Blvd. Suite 1000, St. Louis, MO 63105. Respondent is Security Equipment Corporation (“Respondent”), 330 Sun Valley Circle, Fenton, MO 63026. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <sabredefense.com>, registered with Nameview, 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. Judge Ralph Yachnin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on April 13, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 16, 2007. On April 17, 2007, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <sabredefense.com> domain name is registered with Nameview, Inc. and that Respondent is the current registrant of the name. Nameview, Inc. has verified that Respondent is bound by the Nameview, 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 April 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 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@sabredefense.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On May 18, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 <sabredefense.com> domain name is confusingly similar to Complainant’s SABRE mark. 2. Respondent does not have any rights or legitimate interests in the <sabredefense.com> domain name. 3. Respondent registered and used the <sabredefense.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Security Equipment Corporation, manufactures and markets personal defense weapons for use by law enforcement agencies, military institutions, and the general public. Complainant is best known for its production of pepper spray marketed under the “Sabre” product line for which Complainant holds two trademark registrations for the SABRE mark with the United States Patent and Trademark Office (“USPTO”) (Reg No. 1,194,935 issued May 11, 1982; Reg No. 2,915,839 issued January 4, 2005). Complainant has used the SABRE mark in commerce since as early as 1976 and its registrations have achieved incontestable status under 15 U.S.C. §1065. Respondent registered the <sabredefense.com> domain name on June 7, 2006. Respondent’s domain name resolves to a website containing links to various websites promoting competing personal defense products such as pepper spray, mace, and stun guns. 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 rights in the SABRE mark through registration with the USPTO and contends that such rights have achieved incontestability under 15 U.S.C. §1065. The Panel finds that a federal trademark registration establishes Complainant’s rights in the SABRE mark under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bin g Glu, FA 874496 (Nat Arb. Forum Feb. 13, 2007) (finding rights in the METLIFE mark as a result of its registration with the United States federal trademark authority); see also Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum January 31, 2007) (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration with the USPTO). Complainant contends that Respondent’s <sabredefense.com> domain name is confusingly similar to Complainant’s mark. Respondent’s disputed domain name contains Complainant’s SABRE mark in its entirety and adds the generic term “defense” along with the generic top-level domain (“gTLD”) “.com.” The Panel finds that the term “defense” has an obvious relationship to Complainant’s business and fails to sufficiently distinguish Respondent’s domain name from Complainant’s mark. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark). The Panel further holds that the addition of a gTLD is irrelevant when determining whether a domain name is identical or confusingly similar to an established mark for purposes of Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant contends that Respondent does not have rights or legitimate interests in the <sabredefense.com> domain name. Under certain circumstances, Complainant’s assertion may establish a prima facie case, resulting in a burden shift from Complainant to Respondent to establish that it does have rights and legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). Because Respondent has failed to respond to Complainant’s complaint, the Panel infers that Respondent does not have rights and legitimate interests in either of the <sabredefense.com> domain name under Policy ¶ 4(a)(ii). See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel chooses to examine the evidence under the Policy ¶ 4(c) elements. Complainant contends that Respondent is using the <sabredefense.com> domain name to operate a website featuring links to various websites offering competing personal defense products such as pepper spray, mace, and stun guns. The Panel infers from Respondent’s use of the disputed domain name that it is collecting referral fees for each Internet user misdirected to one of Complainant’s competitors. The Panel finds such use to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Ali Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name as the respondent is merely using the domain name to operate a website containing links to various competing commercial websites, which is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services). Complainant contends that Respondent is not commonly known by the <sabredefense.com> domain name nor authorized to register domain names featuring Complainant’s SABRE mark. Although the relevant WHOIS information lists Respondent as Security Equipment Corporation name, the rightful owner of the SABRE mark, Complainant disputes this information and claims that Respondent is deliberately attempting to mislead the Panel. In the absence of any other evidence supporting Respondent’s legitimate operation under the Security Equipment Corporation name, the Panel finds that Respondent is not commonly known by the <sabredefense.com> domain name or authorized to register names featuring Complainant’s mark. As a result, Respondent has not established rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”); see also Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Complainant contends that Respondent is using the <sabredefense.com> domain name to operate a website that provides Internet users with links to various competing commercial websites. The Panel finds that Respondent’s use constitutes a disruption of Complainant’s business and evinces bad faith pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites). Furthermore, Respondent’s use will likely cause confusion as to Complainant’s sponsorship of and affiliation with the resulting website. The Panel finds that use of a confusingly similar domain name for Respondent’s own commercial gain is additional evidence of Respondent’s 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 Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website). 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 <sabredefense.com> domain name be TRANSFERRED from Respondent to Complainant. Hon. Ralph Yachnin, Panelist Justice, Supreme Court, NY (Ret.) Dated: May 30, 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.