Rediscovertheoriginalthinkandgrowrich.com

The timeline behind rediscovertheoriginalthinkandgrowrich.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 The Napoleon Hill Foundation v. Dan Klatt Claim Number: FA0803001172174 PARTIES Complainant is The Napoleon Hill Foundation (“Complainant”), represented by Sana Hakim, of Bell Boyd & Lloyd LLP, Illinois, USA. Respondent is Dan Klatt (“Respondent”), Arizona, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <rediscovertheoriginalthinkandgrowrich.com>, registered with Schlund+Partner Ag. 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. John J. Upchurch as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 28, 2008; the National Arbitration Forum received a hard copy of the Complaint on March 31, 2008. On March 31, 2008, Schlund+Partner Ag confirmed by e-mail to the National Arbitration Forum that the <rediscovertheoriginalthinkandgrowrich.com> domain name is registered with Schlund+Partner Ag and that Respondent is the current registrant of the name. Schlund+Partner Ag has verified that Respondent is bound by the Schlund+Partner Ag 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 2, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 22, 2008 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@rediscovertheoriginalthinkandgrowrich.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 28, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <rediscovertheoriginalthinkandgrowrich.com> domain name is confusingly similar to Complainant’s THINK AND GROW RICH mark. 2. Respondent does not have any rights or legitimate interests in the <rediscovertheoriginalthinkandgrowrich.com> domain name. 3. Respondent registered and used the <rediscovertheoriginalthinkandgrowrich.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, The Napoleon Hill Foundation, is a non-profit corporation that provides personal achievement publications and audio recordings based on the research and teachings of Dr. Napoleon Hill. Complainant owns numerous registrations with the United States Patent and Trademark Office (“USPTO”), including the THINK AND GROW RICH mark (Reg. No. 2,092,144 issued August 26, 1997). Respondent, Dan Klatt, registered the <rediscovertheoriginalthinkandgrowrich.com> domain name on May 21, 2007 and is currently using the disputed domain name to advertise and sell financial self-improvement materials similar to those offered by Complainant. Respondent was also the respondent in a previous UDRP proceeding with the same complainant, The Napoleon Hill Foundation, regarding a similar domain name, <rediscoverthinkandgrworich.com>. See Napoleon Hill Found. v. Klatt, FA 1045245 (Nat. Arb. Forum Sept. 14, 2007) (transferring the disputed domain name to the 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 alleges rights to the THINK AND GROW RICH mark based on the USPTO trademark registration. Under the Policy, registration of a mark with a pertinent government authority, such as the USPTO, confers rights in that mark on a complainant. Complainant has thus established rights to the THINK AND GROW RICH mark for the purposes of Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”). Complainant alleges Respondent’s <rediscovertheoriginalthinkandgrowrich.com> domain name is confusingly similar to its registered THINK AND GROW RICH mark. The disputed domain name contains Complainant’s entire mark and deletes the spaces between words. Respondent also adds the common terms “rediscover the original.” The Panel finds the omission of spaces irrelevant in distinguishing a domain name because domain names cannot contain spaces between words. The Panel also finds the addition of the common terms “rediscover,” “the,” and “original” do not negate the confusingly similar nature of the disputed domain name and Complainant’s mark. The Panel concludes Respondent’s <rediscovertheoriginalthinkandgrowrich.com> domain name is confusingly similar to Complainant’s THINK AND GROW RICH mark pursuant to Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Vivid Video, Inc. v. Tennaro, FA 126646 (Nat. Arb. Forum Nov. 14, 2002) (finding that any distinctiveness resulting from the respondent’s addition of a generic word to the complainant’s mark in a domain name is less significant because the respondent and the complainant operate in the same industry); see also Novell, Inc. v. Taeho Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” because even though “the word ‘solutions’ is descriptive when used for software, Respondent has used this word paired with Complainant's trademark NOVELL”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant alleges that Respondent does not have rights or legitimate interests in the <rediscovertheoriginalthinkandgrowrich.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Based on the allegations in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). Since Respondent has not responded to the Complaint, the Panel may assume Respondent does not have rights or legitimate interests. However, the Panel will examine the record to determine if such rights or legitimate interests are present pursuant to Policy ¶ 4(c). 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 Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Complainant alleges Respondent is not commonly known by the <rediscovertheoriginalthinkandgrowrich.com> domain name. The WHOIS information identifies Respondent as “Dan Klatt” but Respondent provides no other information suggesting Respondent might be commonly known by the disputed domain name. The Panel may assume that Respondent’s failure to respond to the Complaint is evidence Respondent is not commonly known by the disputed domain name. Pursuant to Policy ¶ 4(c)(ii), the Panel concludes Respondent lacks rights and legitimate interests in the <rediscovertheoriginalthinkandgrowrich.com> domain name. See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"). Respondent is currently using the <rediscovertheoriginalthinkandgrowrich.com> domain name to advertise and sell products in competition with Complainant’s products. Therefore, the Panel finds the registration and use of the <rediscovertheoriginalthinkandgrowrich.com> domain name is not in connection of with 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 Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent’s <rediscovertheoriginalthinkandgrowrich.com> domain name displays, advertises and sells products in competition with Complainant. This use is a disruption of Complainant’s business. The Panel concludes the registration and use of Respondent’s <rediscovertheoriginalthinkandgrowrich.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iii). See Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where the respondent and the complainant were in the same line of business); see also Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion). Complainant alleges Respondent registered and is using the <rediscovertheoriginalthinkandgrowrich.com> domain name in bad faith because Respondent is financially profiting off the goodwill associated with Complainant’s mark and creating a likelihood of confusing regarding Complainant’s sponsorship and affiliation with the disputed domain name. Complainant also alleges Respondent’s bad faith registration and use of the disputed domain name because, due to a previous UDRP decision, Respondent had knowledge of Complainant’s rights in the THINK AND GROW RICH mark. The Panel agrees and finds this use and registration of the disputed domain name constitutes bad faith pursuant to Policy ¶ 4 (b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site). Complainant alleges bad faith use and registration of Respondent’s <rediscovertheoriginalthinkandgrowrich.com> domain name because Respondent was involved with a previous UDRP decision in which Respondent was ordered to transfer the disputed domain name to Complainant. The Panel concludes Respondent registered and is using the <rediscovertheoriginalthinkandgrowrich.com> domain name in bad faith pursuant to Policy ¶ 4(b)(ii). See Napoleon Hill Found. v. Klatt, FA 1045245 (Nat. Arb. Forum Sept. 14, 2007); see also YAHOO! INC v. SYRYNX, INC., D2000-1675 (WIPO Jan. 30, 2001) (finding a bad faith pattern pursuant to Policy ¶ 4(b)(ii) in the respondent's registration of two domain names incorporating the complainant's YAHOO! mark); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith where (1) the respondent knew or should have known of the complainant’s SONY marks and (2) the respondent registered multiple domain names which infringed upon the complainant’s mark). 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 <rediscovertheoriginalthinkandgrowrich.com> domain name be TRANSFERRED from Respondent to Complainant. John J. Upchurch, Panelist Dated: May 5, 2008 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.