Atriummedical.net

The timeline behind atriummedical.net

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 Atrium Medical Corporation v. Ideal Yikilmaz Yazilim c/o Deniz Yikilmaz Claim Number: FA0803001172417 PARTIES Complainant is Atrium Medical Corporation (“Complainant”), represented by Sean D. Detweiler, of Lahive & Cockfield, LLP, Massachusetts, USA. Respondent is Ideal Yikilmaz Yazilim c/o Deniz Yikilmaz (“Respondent”), Turkey. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <atriummedical.net>, registered with Domainpeople, 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. Michelle Brownlee, Honorable Ralph Yachnin, and Sandra J. Franklin as Panelists, with Ms. Franklin serving as Chairperson. 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 April 2, 2008. On April 2, 2008, Domainpeople, Inc. confirmed by e-mail to the National Arbitration Forum that the <atriummedical.net> domain name is registered with Domainpeople, Inc. and that Respondent is the current registrant of the name. Domainpeople, Inc. has verified that Respondent is bound by the Domainpeople, 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 9, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 29, 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@atriummedical.net by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On May 14, 2008, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Michelle Brownlee, Honorable Ralph Yachnin, and Sandra J. Franklin as Panelists, with Ms. Franklin serving as Chairperson. 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 <atriummedical.net> domain name is confusingly similar to Complainant’s ATRIUM mark. 2. Respondent does not have any rights or legitimate interests in the <atriummedical.net> domain name. 3. Respondent registered and used the <atriummedical.net> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant Atrium Medical Corporation holds trademark registrations with the U.S. Patent and Trademark Office for ATRIUM, as well as two Atrium logos, with use dating back to 1983. Complainant uses the mark ATRIUM in connection with sales of its medical products, including those for use in emergency procedures and surgery. Respondent registered the domain name <atriummedical.net> on November 24, 2006, and uses it to advertise methods of infectious needle disposal, and duplicates the look and feel of Complainant’s website. 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 registered the ATRIUM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,629,732 issued Oct. 8, 2002). The Panel finds that this registration establishes Complainant’s rights in the mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)). The <atriummedical.net> domain name contains Complainant’s mark in its entirety with the addition of the word “medical.” The Panel finds that the addition of the word “medical” causes confusion because it describes Complainant’s business. The Panel also finds that the addition of the generic top-level domain “.com” does not affect an analysis under Policy ¶ 4(a)(i). See Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access the complainant’s website, think that an affiliation of some sort exists between the complainant and the respondent, when in fact, no such relationship would exist); see also 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 must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Because Respondent failed to answer the Complaint, the Panel may find that Respondent lacks all rights and legitimate interests in the disputed domain name. See 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.”); see also 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 will examine all evidence in the record to determine if Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). Complainant alleges that there is no evidence in the record or in the WHOIS registration that Respondent is commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the <atriummedical.net> domain name under Policy ¶ 4(c)(ii). 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"). Complainant alleges Respondent uses the disputed domain name to sell products in competition with Complainant’s business. The Panel finds that this use is not 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 Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith The Panel finds that Respondent’s use of the <atriummedical.net> domain name to advertise related and competing services and products causes a disruption to Complainant’s business and constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iv).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). Respondent’s disputed domain name is confusingly similar to Complainant’s mark and is likely to cause confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website, for Respondent’s commercial gain, a further indication of bad faith under Policy ¶ 4(b)(iv). See Bank of Am. Corp. v. Out Island Props., Inc., FA 154531 (Nat. Arb. Forum June 3, 2003) (stating that “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website” in holding that the domain names were registered and used in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Hancock Fabrics, Inc. v. Active Advantage, Inc., FA 204111 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent’s use of the <hancockfabric.com> domain name, a domain name confusingly similar to Complainant’s HANCOCK FABRICS mark, to redirect Internet traffic to a website that provides a selection of jokes demonstrates Respondent’ bad faith use of the disputed domain name because Respondent has created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website, which evidences bad faith registration and use under Policy ¶ 4(b)(iv).”). 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 <atriummedical.net> domain name be TRANSFERRED from Respondent to Complainant. Michelle Brownlee, Panelist Honorable Ralph Yachnin, Panelist Sandra J. Franklin, Panelist and Chairperson Dated: May 28, 2008 Click Here to return to the main Domain Decisions Page. 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Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.