The Complainant is PHE, Inc., Hillsborough, United States of America, represented by Foley Hoag LLP, United States of America.
The Respondent is Nadeem Qadir, Dhaka, Bangladesh.
2. The Domain Name and Registrar
The disputed domain name <wwwadameve.com> is
registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 20, 2005. On December 20, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On December 28, 2005, eNom transmitted by email to the Center its verification response, providing the current contact information for the domain. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 28, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 17, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 18, 2006.
The Center appointed John Swinson as the Sole Panelist in this matter on January 24, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The language of the proceeding is English.
4. Factual Background
The Complainant is PHE, Inc., a company incorporated in the State of North Carolina and having its principal place of business in Hillsborough, NC, USA.
The Complainant is the holder of United States trademark registrations for the following trademarks (“ADAM & EVE marks”):
Registration Number
Trademark
Goods and Services
Registration Date
2415898
ADAMEVE.COM
(word mark)
Computerised on-line ordering and catalogue services in products of a primarily erotic nature
December 26, 2000
1020743
ADAM & EVE
(work mark)
Mail order services specialising and contraceptive products
September 16, 1975
1020448
ADAM & EVE
(design plus words)
Prophylactics
September 16, 1975
1020744
ADAM & EVE
(design plus words)
Retail mail order services specialising in contraceptive products
September 16, 1975
1139193
ADAM & EVE
(design plus words)
Kit comprised on vibratory and sexual stimulating massage apparatus, condoms and massage oils and lubricants
September 2, 1980
1020449
ADAM & EVE
(word mark)
Prophylactics
September 16, 1975
1123685
ADAM & EVE
(design plus words)
Shopping catalogues
August 7, 1979
1158558
ADAM & EVE
(design plus words)
Retail mail order service in the field of books
June 23, 1981
2462066
ADAM & EVE
(word mark)
Video club services
June 19, 2001
2608920
ADAM & EVE
(design plus words)
Massage oils, tropical gels, clothing, namely lingerie and underwear and mail order, catalogue and on-line retail services in the field of adult entertainment and human sexuality products
May 28, 2002
2519795
ADAM & EVE
(word mark)
Massage oils lotions and colognes; providing on-line chat rooms for transmission among computer users in the fields of adult entertainment and human sexuality.
December 18, 2001
2514911
ADAM & EVE VIDEO CLUB
(word mark)
Mail order video club services and on-line ordering services featuring videos
December 4, 2001
2563366
ADAM & EVE PRODUCTIONS
(word mark)
Video recordings featuring adult entertainment
April 23, 2002
2560234
TEMPTATIONS PARTIES…FROM ADAM & EVE
(word mark)
Wholesale distributorship services, catalogue services, online retail services, and shop-at-home party services featuring items for adult entertainment and other adult- oriented products.
April 9, 2002
2548158
ADAM & EVE INTERACTIVE
(word mark)
Pre-recorded disks, DVD’s, CD-ROM’s and computer programs in the field of human sexuality; providing a website featuring aforementioned products; providing on-line chat rooms for transmission of messages concerning human sexuality
March 13, 2001
The Complainant markets mail-order contraceptive and adult products. The Complainant uses the ADAM & EVE marks in connection with adult entertainment and adult-oriented and erotic products. It offers its goods and services at retail to the general public worldwide through mail-order catalogues and its websites. The Complainant distributes more than 30 million catalogues each year to more than 4 million customers in the United States and abroad.
The Complainant promotes its products and provides company information at <adameve.com>. In addition, the Complainant has registered many variations on its ADAM & EVE Marks, including common typographical errors, as domains.
The disputed domain name was first registered January 26, 2000,
and was transferred to the Respondent on January 26, 2003.
5. Parties’ Contentions
A. Complainant
The Complainant relies on the factual background set out in section 4 (“Factual Background”) above.
The Complainant contends that the disputed domain name is identical or at least confusingly similar to the ADAM & EVE marks as registered and used by the Complainant.
According to the Complainant, the Respondent has no right or legitimate interest in the disputed domain name as:
(a) the Respondent is not an agent nor a licensee of the Complainant, and therefore has no right to use the ADAM & EVE marks in its domain or on its website;
(b) there is no evidence that the Respondent has been commonly known by the words contained in the domain name in dispute;
(c) there is no evidence that the Respondent can demonstrate that prior to any notice of the dispute, the domain name was used in connection with a bona fide offering of goods or services; and
(d) the Respondent cannot demonstrate legitimate rights because the Respondent is not making a legitimate, non-commercial fair use of the domain name in dispute; and
(e) the Respondent “Nadim Qadir” is another alias for Alex Vorot, a known cybersquatter. See Yahoo! Inc. and HotJobs.com Ltd. v. Alex Vorot et al (Nat. Arb. Forum Claim No: FA0305000159547).
The Complainant further alleges that the Respondent has registered and is using the domain name in bad faith for the following reasons:
(a) the domain name has not been actively used for any other purpose other than to redirect traffic to a search page presumably for the benefit of the Respondent;
(b) the Respondent has aimed to divert consumers in a manner that could harm the goodwill associated with the mark by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(c) the Respondent has registered the disputed domain with actual and/or constructive knowledge that it was identical to the Complainant’s ADAM & EVE marks.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
In order to qualify for a remedy, the Complainant must make out the three elements set out in paragraph 4(a) of the Policy, namely:
(a) the domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights; and
(b) the Respondent has no rights or legitimate interests in respect of the domain name; and
(c) the domain name has been registered and is being used in bad faith.
The onus of proving these elements is on the Complainant.
A. Identical or Confusingly Similar
There are two elements that the Complainant must establish under paragraph 4(a)(i) of the Policy - that the Complainant has rights in a trademark or a service mark and that the disputed domain name is identical to or confusingly similar to the mark.
The Panel finds that the Complainant has established that it has valid rights in the ADAM & EVE marks. The Panel considers that the Complainant has provided strong evidence of extensive use of that mark internationally and consequentially have goodwill in the mark.
There is one minor difference between the disputed domain name and the word mark “ADAMEVE.COM”. There is the addition of “www”. This difference is not material.
Accordingly, the Panel finds that paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
The Complainant contends that the Respondent has no legitimate interest in the disputed domain name.
Paragraph 4(c) of the Policy sets out three elements, any of which shall demonstrate the Respondent’s rights or legitimate interests in the disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy. The Respondent had the opportunity to respond and present evidence in support of the elements in paragraph 4(c) of the Policy. The Respondent chose not to do so and has not filed any response in this proceeding establishing any circumstances that could demonstrate any rights or legitimate interest in the disputed domain name.
The Complainant is not entitled to relief simply by default, however, the Panel can and does draw evidentiary inferences from the failure to respond. See Royal Bank of Canada v. D3M Domain Sales, eResolution Case No. AF-0147.
There is no evidence at the website associated with the disputed domain name or in any of the WHOIS information indicating that the Respondent is commonly known by the disputed domain name. Furthermore, the Complainant has not authorized the Respondent to use the ADAM & EVE marks.
The Respondent has no rights or legitimate interests in the disputed domain name because the Respondent’s current use is neither an example of a bona fide offering of goods or services nor a legitimate non-commercial or fair use of the disputed domain name.
The Panel is satisfied that the Respondent has no rights or legitimate interests in respect of the disputed domain name and accordingly, paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
The Panel visited the website at the disputed domain name on February 5, 2006. This website consisted of a “pop-up” for online gambling and a search engine with results for “sexy lingerie”. There was no statement or notice appearing on the website at the disputed domain name making it clear that the website was not associated with the Complainant. The website appears to be designed to present users with search engine results and thereby derive revenue from click-throughs from confused web users wanting to deal with the Complainant.
There appears to be a clear intent to attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant’s mark.
The Panel notes that the term “adameve” is generic and could be used in a domain name for a bona fide purpose. However, in this particular case, taking into account the content of the website associated with the disputed domain name and the typosquatting element “wwwadameve” of the domain name (omitting the period after “www”), the Panel finds on the balance that the domain name was registered and is being used in bad faith.
Accordingly, the Panel finds that paragraph 4(a)(iii)
of the Policy is satisfied.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wwwadameve.com> be transferred to the Complainant.
John Swinson
Sole Panelist
Dated: February 7, 2006
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