Coastdental.org

The timeline behind coastdental.org

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 Coast Dental Services Inc. v. Jeff Sundermeyer Claim Number: FA0805001189805 PARTIES Complainant is Coast Dental Services Inc. (“Complainant”), Florida, USA. Respondent is Jeff Sundermeyer (“Respondent”), Georgia, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <coastdental.org>, registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide. 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. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on May 8, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 12, 2008. On May 12, 2008, Melbourne IT, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <coastdental.org> domain name is registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne IT, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne IT, Ltd. d/b/a Internet Names Worldwide 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 May 16, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 5, 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@coastdental.org by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On June 11, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <coastdental.org> domain name is identical to Complainant’s COAST DENTAL mark. 2. Respondent does not have any rights or legitimate interests in the <coastdental.org> domain name. 3. Respondent registered and used the <coastdental.org> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Coast Dental Services Inc., is in the business of operating dental offices and providing dental services in the United States. Complainant uses its COAST DENTAL mark in association with this business and registered the COAST DENTAL mark with the United States Patent and Trademark Office (“USPTO”) on January 27, 1998 (Reg. No. 2,132,076). Respondent, Jeff Sundermeyer, registered the <coastdental.org> domain name on October 3, 2006 which resolves to a website that is primarily blank except for the phrases “For Bad Teeth…Come to Coast Dental!” and “Welcome to Coast Dental Where You’re [sic] teeth… Don’t Matter! Coming soon.” Respondent has offered to shut down the <coastdental.org> domain name and resolving website only if Complainant makes a payment to Respondent. 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 The Panel finds that Complainant has established sufficient rights in its COAST DENTAL mark through its registration with the USPTO pursuant to Policy ¶ 4(a)(i). 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.”). Respondent’s <coastdental.org> domain name incorporates Complainant’s entire COAST DENTAL mark omitting the space between the first and second terms, and adding the generic top-level domain “.org,” both of which do not create distinctiveness under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a generic top-level domain does not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel finds that Respondent’s <coastdental.org> domain name is identical to Complainant’s COAST DENTAL mark under Policy ¶ 4(a)(i). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant must initially establish a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, thereby shifting the burden of proof to Respondent. In American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002), the panel found that “based on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.” The Panel finds that Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in the <coastdental.org> domain name, but, nevertheless, chooses to evaluate all of the evidence under Policy ¶ 4(c). The Panel finds that Respondent is using the <coastdental.org> domain name to operate a complaint site critical of Complainant, which does not constitute 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 Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (holding that the respondent’s showing that it “has a right to free speech and a legitimate interest in criticizing the activities of organizations like the Complainant . . . is a very different thing from having a right or legitimate interest in respect of [a domain name that is identical to Complainant’s mark]”); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (because the respondent's sole purpose in selecting the domain names was to cause confusion with the complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use). Additionally, nothing in the WHOIS registration information or uncontested record demonstrates that Respondent is commonly known by the <coastdental.org> domain name. In RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001), the panel interpreted 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." Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel finds that Respondent is not commonly known by the <coastdental.org> domain name. See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that the respondent has no rights or legitimate interests in domain names because it is not commonly known by the complainant’s marks and the respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use). The Panel finds that Policy ¶ 4(a)(ii) has been met. Registration and Use in Bad Faith The Panel finds that Respondent offered to sell the <coastdental.org> domain name to Complainant. In Bank of America Corp. v. Northwest Free Community Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), the panel found that “Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).” Similarly, pursuant to Policy ¶ 4(b)(i), the Panel finds that Respondent registered and is using the disputed domain name in bad faith. See Little Six, Inc. v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding the respondent's offer to sell the domain name at issue to the complainant was evidence of bad faith). Moreover, the Panel finds Respondent’s use of the identical <coastdental.org> domain name to resolve to a website critical about Complainant is disruptive to Complainant’s business. The Panel finds such use constitutes evidence of bad faith under Policy ¶ 4(a)(iii). See Northwest Airlines, Inc. v. Jorgenson, FA 96586 (Nat. Arb. Forum Mar. 28, 2001) (“Respondent registered the domain name for the purpose of bringing Internet users desiring to learn more about Complainant to Respondent's site for the intended purpose of publishing contrary and critical views of Complainant thus disrupting the business of Complainant. Registering a domain name identical with the mark of Complainant, for this purpose, is bad faith.”); see also TM Acquisition Corp. v. S.E.A. Domains, FA 156800 (Nat. Arb. Forum June 12, 2003) (finding the respondent's use of the complainant's mark to redirect Internet users to a website dedicated to criticizing the complainant was evidence that the respondent’s domain names were registered and used in bad faith). 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 <coastdental.org> domain name be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: June 25, 2008 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.