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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Conyers Pediatrics, P.C. v. dan eysie

Case No. D2008-1307

1. The Parties

The Complainant is Conyers Pediatrics, P.C. of Conyers, Georgia, United States of America, represented by The Gigalaw Firm LLC, United States of America.

The Respondent is dan eysie of Alpharetta, Georgia, United States of America.

2. The Domain Name and Registrar

The disputed domain name <conyerspediatrics.com> is registered with GoDaddy.com, Inc..

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2008. On August 28, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On August 28, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on September 4, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was September 24, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 26, 2008.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on October 15, 2008. 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.

4. Factual Background

Complainant operates a medical practice founded in 1991. Complainant employs six pediatricians, each of whom is board certified in Pediatric Medicine and a Fellow of the American Academy of Pediatrics.

Complainant operates three locations in Rockdale and Newton counties (Georgia, United States of America).

Complainant has identified its services by the CONYERS PEDIATRICS trademark continuously since at least 1991. Numerous newspaper articles and advertisements have identified Complainant by that trademark since at least 1992.

The disputed domain name <conyerspediatrics.com> was registered on December 6, 2003.

5. Parties’ Contentions

A. Complainant

Complainant contends that the domain name registered by Respondent is identical to Complainant’s common law mark. Complainant further contends that Respondent has no rights or legitimate interests in respect of the domain name, does not operate a business under the mark “Conyers Pediatrics” or any variation thereof, and has not made any demonstrable preparations to use the domain name. Complainant contends that the domain name was registered and used in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:

(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) Respondent has no rights or legitimate interests with respect to the domain name; and

(iii) the domain name has been registered and used in bad faith.

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.”

A. Identical or Confusingly Similar

Complainant has submitted evidence showing its longstanding and continuous use of the mark CONYERS PEDIATRICS to identify its services. The Panel has no hesitation in finding that Complainant has acquired common law rights in the mark CONYERS PEDIATRICS.

The disputed domain name contains Complainant’s CONYERS PEDIATRICS mark in its entirety.

Accordingly, the Panel finds that Complainant has satisfied this criterion.

B. Rights or Legitimate Interests

Complainant contends, upon information and belief, that Respondent owns and operates a medical practice known as “Children’s Medicine of Rockdale”, which operates a website at “www.rockdalekids.com”. Complainant submitted evidence showing that the registered agent for Eysie Medical Associates LLC, listed as the copyright owner on the above-referenced website, is the Respondent. This is supported by an email from Respondent to counsel for Complainant which is signed by Respondent as “Dan Eysie/ Eysie Medical Associates/ d/b/a Children’s Medicine of Rockdale / www.rockdalekids.com”.

The website located at the disputed domain name redirects to Respondent’s website at “www.rockdalekids.com”.

Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized Respondent to register or use the CONYERS PEDIATRICS trademark in any manner. There is no evidence of any commercial relationship between Complainant and Respondent which would entitle Respondent to use the mark in a domain name or otherwise.

There is no evidence in the record to indicate that Respondent is generally known by the domain name or that Respondent has ever made preparations to use the disputed domain name in connection with a bona fide offering of goods or services. Instead, Respondent is using the disputed domain name to direct Internet users to its own competing website. Such use of the disputed domain name is not a bona fide offering of goods or services under the Policy and, therefore, there is nothing to indicate that Respondent has any genuine rights or legitimate interests in the disputed domain name.

The Panel finds that Respondent has no rights or legitimate interests with regard to the domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that 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 the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or

(ii) 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) 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 Respondent’s website or location of a product or service on Respondent’s website or location.

Complainant has shown that the domain name is being used for commercial gain to attract Internet users to Respondent’s website based on a likelihood of confusion with Complainant’s CONYERS PEDIATRICS mark. Complainants’ prior use of the CONYERS PEDIATRICS mark for many years prior to Respondent’s registration of the domain name leads to the conclusion that Respondent registered and is using the domain name with actual knowledge of Complainants’ rights. Respondent has also registered the keywords “conyers pediatrics” and “nora patonay” (the name of the founder of Complainant’s medical practice) on Internet search engines. Internet users searching for these phrases are presented with a listing for Respondent’s website at “www.rockdalekids.com”, the same website to which Internet users are directed when they visit “www.conyerspediatrics.com”, at the disputed domain name.

Respondent’s motive in registering the disputed domain name appears designed to disrupt Complainant’s relationship with its customers or potential customers or attempt to attract Internet users seeking Complainant, and thereby gain commercially.

Accordingly, the Panel finds the disputed domain name to be registered and used in bad faith.

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 <conyerspediatrics> be transferred to the Complainant.

Lynda J. Zadra-Symes
Sole Panelist

Dated: October 30, 2008