Acousticguitarcenter.com

The timeline behind acousticguitarcenter.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.

DECISION Guitar Center, Inc. v. Stuff Nepal Claim Number: FA2305002045804 PARTIES Complainant is Guitar Center, Inc. (“Complainant”), represented by Gina Carrillo, US. Respondent is Stuff Nepal (“Respondent”), Nepal. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <acousticguitarcenter.com>, registered with OwnRegistrar, 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. Debrett G. Lyons as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to Forum electronically on May 24, 2023; Forum received payment on May 30, 2023. On May 24, 2023, OwnRegistrar, Inc. confirmed by e-mail to Forum that the <acousticguitarcenter.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On June 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 26, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@acousticguitarcenter.com. Also on June 6, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts. Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default. On July 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Debrett G. Lyons as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, 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 Complainant asserts trademark rights in GUITAR CENTER. Complainant holds a national registration for that trademark. Complainant submits that the domain name is confusingly similar to its trademark. Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because it has no trademark rights; is not known by the same name; and the domain name has not been used other than for a nefarious purpose. Complainant alleges that Respondent registered the disputed domain name in bad faith having targeted Complainant’s business. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS The factual findings pertinent to the decision in this case are that: 1. Complainant uses the GUITAR CENTER mark in connection with its business as a musical instrument retailer; 2. Complainant owns United States Patent and Trademark Office (“USPTO”) Reg. No. 1,290,481, registered on August 14, 1984 for GUITAR CENTER; 3. the disputed domain name was registered on December 11, 2022; 4. the disputed domain name directs internet users to Complainant’s official website; and 5. there is no relationship between the parties and Complainant has not authorized Respondent to use the trademark or register any domain name incorporating the trademark. 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." 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. 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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Identical and/or Confusingly Similar Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights. See, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003). Complainant therefore has rights since it provides proof of its registration of the trademark with the USPTO, a national trademark authority. For the purposes of comparison of the disputed domain name with the trademark the gTLD, “.com”, can be disregarded. Thereafter, the domain name merely prefaces the trademark with the descriptive word, “acoustic”. In other circumstances, in particular where a reasoned Response was filed, a respectable argument might be made that the domain name is purely descriptive and that there is no confusion. However, absent a Response and given the findings made by the Panel made hereunder, the Panel finds the domain name to be confusingly similar to the trademark (see, for example, Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”); Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); Research Now Group, Inc. v. Pan Jing, FA 1735345 (Forum July 14, 2017) (“The … elimination of spacing [is] considered irrelevant when distinguishing between a mark and a domain name.”)). The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. Rights or Legitimate Interests Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy: (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)). The Registrar disclosed the name of the domain name registrant as “Stuff Nepal” which does not in any way indicate that Respondent might be commonly known by the domain name. There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties. Further, Complainant provides evidence that the Respondent uses the disputed domain name to redirect internet users to Complainant’s own website to generate affiliate commissions. Such use is in breach of Complainant’s affiliate programme and is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). A prima facie case has been made (see, for example, Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Forum May 3, 2006) finding that the respondent’s use of the disputed domain names to divert Internet users attempting to reach the complainant’s website and in breach of the complainant’s affiliate program is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)); Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services). The onus shifts to Respondent and in the absence of a Response, the Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy. Registration and Use in Bad Faith Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith. Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established. The four specified circumstances are: “(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.” The Panel finds direct application of paragraph 4(b)(iv) above. Having already found confusing similarity and the likelihood that the use is for commercial gain, the Panel goes on to find in terms of the Policy that Respondent has attempted to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with the trade mark as to the source, sponsorship, affiliation, or endorsement of that website (see, for example, Advance Auto Parts, Inc. d/b/a Advance Auto Innovations, LLC. v. Dragan Platic / Poste Restante, FA1401001537469 (Forum Feb. 13, 2014) holding that the respondent’s behavior in redirecting Internet users to the complainant’s own website allowing it to improperly profit from the complainant’s affiliation program was indicative of the respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(a)(iii)); Ticket Software, LLC v. Jiewei Li, FA1311001530834 (Forum Dec. 27, 2013) concluding that the respondent was using the disputed domain name to profit illicitly from the receipt of commissions by redirecting Internet users to the complainant’s website through the complainant’s affiliation program demonstrated bad faith in the registration and use of the disputed domain name according to Policy ¶ 4(a)(iii)). The Panel finds that Complainant has satisfied the third and final element of the Policy. 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 <acousticguitarcenter.com> domain name be TRANSFERRED from Respondent to Complainant. Debrett G. Lyons, Panelist Dated: July 14, 2023 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.