Adventurelife.travel

The timeline behind adventurelife.travel

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 Brian D. Morgan and ALJ, Inc. v. Labitrav c/o Admin Claim Number: FA0804001173244 PARTIES Complainant is Brian D. Morgan and ALJ, Inc. (“Complainant”), represented by Shane A. Vannatta, of Worden Thane P.C., Montana, USA. Respondent is Labitrav c/o Admin (“Respondent”), Florida, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <adventurelife.travel>, registered with Namesbeyond.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. John J. Upchurch as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 31, 2008; the National Arbitration Forum received a hard copy of the Complaint on April 2, 2008. Addressing procedural deficiencies, Complainant submitted an Amended Complaint to the National Arbitration Forum electronically on April 15, 2008. On April 9, 2008, Namesbeyond.com confirmed by e-mail to the National Arbitration Forum that the <adventurelife.travel> domain name is registered with Namesbeyond.com and that Respondent is the current registrant of the name. Namesbeyond.com has verified that Respondent is bound by the Namesbeyond.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 April 16, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 6, 2008 by which Respondent could file a response to the Amended 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@adventurelife.travel by e-mail. On May 9, 2008, an untimely Response was received and found not to be in compliance with ICANN Rule #5(a). It was not considered. Having received no timely response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On May 12, 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, including Respondent’s additional submission which was timely filed on May 14, 2008, 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 timely 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 <adventurelife.travel> domain name is identical to Complainant’s ADVENTURE LIFE mark. 2. Respondent does not have any rights or legitimate interests in the <adventurelife.travel> domain name. 3. Respondent registered and used the <adventurelife.travel> domain name in bad faith. B. Respondent failed to submit a timely Response in this proceeding. FINDINGS Brian Morgan registered the <adventure-life.com> domain name and leases it to ALJ, Inc. Brian Morgan and ALJ, Inc. join as Complainant. Complainant provides travel and group tour services to people around the world through the <adventure-life.com> domain name. Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the ADVENTURE LIFE mark (Reg. No. 3,103,895 issued June 13, 2006). Respondent registered the <adventurelife.travel> domain name on December 21, 2007. Respondent’s disputed domain name resolves to a website that displays links to third party websites offering products and services in competitition 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 established rights in the ADVENTURE LIFE mark pursuant to Policy ¶ 4(a)(i) through registration of the mark with the USPTO. See 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.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”). Complainant contends that Respondent’s <adventurelife.travel> domain name is identical to Complainant’s ADVENTURE LIFE mark. Respondent’s mark contains Complainant’s mark in its entirety, omits spacing, and adds the sponsored top-level domain (“sTLD”) “.travel.” The Panel finds that the addition of an sTLD to a registered mark should be judged on the same basis that a generic top-level domain (“gTLD”) is analyzed. Therefore, the Panel finds that the addition of an sTLD is irrelevant in distinguishing a disputed domain name from a mark. 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 Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). In addition, the Panel finds that omitted spacing is also an indistinguishable characteristic of a disputed domain name. See Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name <wembleystadium.net> is identical to the WEMBLEY STADIUM mark); see also Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the complainant's CROATIA AIRLINES trademark). Therefore, the Panel finds that the <adventurelife.travel> domain name is identical to Complainant’s ADVENTURE LIFE mark pursuant to Policy ¶ 4(a)(i). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Respondent lacks all rights and legitimate interests in the <adventurelife.travel> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds in this case that Complainant has established a prima facie case. 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 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”). Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. 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); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel chooses to examine the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests. Respondent is neither commonly known by the <adventurelife.travel> domain name, nor licensed to register domain names using the ADVENTURE LIFE mark. Respondent’s WHOIS information identifies Respondent as “Admin, Labitrav.” Without affirmative evidence of being commonly known by the <adventurelife.travel> domain name, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). Respondent’s <adventurelife.travel> domain name is identical to Complainant’s ADVENTURE LIFE mark, and displays links to third-party websites in competition with Complainant. The Panel finds that such use of a disputed domain name is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to 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 Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Complainant asserts that Respondent is using the <adventurelife.travel> domain name for the sole purpose of competing with Complainant. The Panel finds that the use of an identical disputed domain name in order to compete with Complainant is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See 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); see also 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)(iii) [and] (iv).”). In addition, Respondent’s use of the <adventurelife.travel> domain name to display links to third-party websites in competition with Complainant is further evidence of bad faith. The Panel infers that Complainant receives click-through fees for operating such a website. Therefore, the Panel finds that Respondent’s use of the disputed domain name in order to commercially benefit by using an identical disputed domain name in order to divert Internet users is further evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous 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 <adventurelife.travel> domain name be TRANSFERRED from Respondent to Complainant. John J. Upchurch, Panelist Dated: May 26, 2008 NATIONAL ARBITRATION FORUM

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