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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

MBTI Trust, Inc. v. Glenn Gasner

Case No. D2009-1428

1. The Parties

Complainant is MBTI Trust, Inc. of Fort Washington, Pennsylvania, United States of America, represented by McGrath North Mullin & Kratz, PC LLO, United States of America.

Respondent is Glenn Gasner of Silver Spring, Maryland, United States of America.

2. The Domain Name and Registrar

The disputed domain name <myersbriggstypeindicator.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 22, 2009. On October 23, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On October 23, 2009, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 29, 2009. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 November 3, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 23, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent`s default on November 25, 2009.

The Center appointed Sandra J. Franklin as the sole panelist in this matter on November 30, 2009. 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 is the owner of the mark MYERS-BRIGGS TYPE INDICATOR. It`s exclusive licensee, CPP, Inc. holds various trademark registrations for that mark, showing use dating back to 1976. The MYERS-BRIGGS TYPE INDICATOR is a well-known personality assessment tool developed over 50 years ago and used around the world, including online.

Respondent registered the <myersbriggstypeindicator.com> domain name in December of 2003. The domain name resolves to a website at "www.echemistry.com" where Respondent purports to offer a personality test based on the work of Myers-Briggs.

5. Parties` Contentions

A. Complainant makes the following assertions:

1. Respondent`s <myersbriggstypeindicator.com> domain name is confusingly similar to Complainant`s MYERS-BRIGGS TYPE INDICATOR mark.

2. Respondent does not have any rights or legitimate interests in the <myersbriggstypeindicator.com> domain name.

3. Respondent registered and used the <myersbriggstypeindicator.com> domain name in bad faith.

B. Respondent failed to submit a Response in this proceeding.

6. Discussion and Findings

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 Management, Inc. v. webnet-marketing, inc., NAF Claim No. FA 95095 (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. Michael Robertson, WIPO Case No. D2000-0009 ("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.

A. Identical or Confusingly Similar

Complainant owns the mark MYERS-BRIGGS TYPE INDICATOR and its exclusive licensee holds several trademark registrations for the MYERS-BRIGGS TYPE INDICATOR mark with the USPTO. The Panel finds that Complainant has established rights in the MYERS-BRIGGS TYPE INDICATOR mark for purposes of Policy 4(a)(i) through the trademark registration of its exclusive licensee with the USPTO. See Lockheed Martin Corporation v. Jeff Hoffman, NAF Claim No. FA874152 (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration of the mark with the USPTO); see also Clear!Blue Holdings, L.L.C. v. NaviSite, Inc., NAF Claim No. FA888071 ("The Panel finds that Complainant has established trademark rights in the CLEAR BLUE marks through introduction of the certificates for its U.S. registration for those trademarks. The U.S. Trademark Act is clear that the certificate of registration on the Principal Register, as here, is prima facie evidence of the validity of the registered mark and the registrant`s exclusive right to use the mark in commerce in on or in connection with the goods specified in the registration.").

Respondent`s <myersbriggstypeindicator.com> domain name is identical to Complainant`s mark pursuant to Policy 4(a)(i). Respondent`s disputed domain name contains Complainant`s MYERS-BRIGGS TYPE INDICATOR mark without the hyphen, and simply adds the generic top-level domain ("gTLD") ".com." The deletion of the hyphen and the addition of a gTLD do not differentiate a domain name from an incorporated mark in any significant way. Therefore, the Panel finds that Respondent`s disputed domain name is not sufficiently distinguished from Complainant`s mark pursuant to Policy 4(a)(i). See Pomellato S.p.A v. Tonetti, WIPO Case No. D2000-0493 (finding <pomellato.com> identical to the complainant`s mark because the generic top-level domain (gTLD) ".com" after the name POMELLATO is not relevant); see also Busy Body, Inc. v. Fitness Outlet Inc., WIPO Case No. D2000-0127 ("[T]he addition of the generic top-level domain (gTLD) name ‘.com` is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."). Therefore, the Panel finds that Respondent`s <myersbriggstypeindicator.com> domain name is identical to Complainant`s MYERS-BRIGGS TYPE INDICATOR mark pursuant to Policy paragraph 4(a)(i).

The Panel finds that Policy paragraph 4(a)(i) has been satisfied.

B. Rights or Legitimate Interests

Complainant has alleged Respondent does not have rights or legitimate interests in the disputed domain name. Complainant is required to produce a prima facie case in support of its allegations and then the burden shifts to Respondent to prove it possesses rights or legitimate interests in the disputed domain name. The Panel finds Complainant has adequately established a prima facie case. Due to Respondent`s failure to respond to these proceedings, the Panel may assume in the circumstance of this case that Respondent does not have any rights or legitimate interests in the disputed domain name. Nonetheless, the Panel will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy 4(c). See G.D. Searle& Co. v. Martin Marketing, NAF Claim No. FA118277 ("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 (a)(ii)."); see also American Express Company v. Fang Suhendro a/k/a American Express Indonesia, NAF Claim No. FA129120 ("[B]ased on Respondent`s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.").

Complainant contends that Respondent is neither commonly known by nor licensed to register the <myersbriggstypeindicator.com> domain name. Respondent`s WhoIs registration lists the registrant is as "Glenn Gasner." Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy 4(c)(ii). See Braun Corporation v. Wayne Loney, NAF Claim No. FA699652 (concluding that the respondent was not commonly known by the disputed domain names where the WhoIs information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence University v. Nextnet Tech. c/o Domain Dept, NAF Claim No. FA881234 (concluding a respondent has no rights or legitimate interests in a disputed domain name where there is no evidence in the record indicating that the respondent is commonly known by the disputed domain name).

Respondent`s disputed domain name resolves to a website offering services and tools in competition with Complainant. The Panel finds that Respondent`s use of the disputed domain name is not a bona fide offering of goods and services pursuant to Policy 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy 4(c)(iii). See Computerized Security Systems, Inc. d.b.a. SAFLOK v. Hu, NAF Claim No. FA157321 ("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 DLJ Long Term Investment Corporation v. BargainDomainNames.com, NAF Claim No. FA104580 ("Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.").

The Panel finds that Policy paragraph 4(a)(ii) has been satisfied.

C. Registered and Used in Bad Faith

Respondent`s operation of a website in direct competition with Complainant`s business is a disruption of Complainant`s business, which constitutes bad faith registration and use pursuant to Policy paragraph 4(b)(iii). See Spark Networks PLC v. Sean Houlihan, NAF Claim No. FA 653476 (holding that the respondent`s registration of a domain name substantially similar to the complainant`s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant`s business under Policy paragraph 4(b)(iii)); see also Paul Barnett Puckett, Individually and d/b/a Nature`s Window v. Miller, WIPO Case No. D2000-0297 (finding that the respondent has diverted business from the complainant to a competitor`s website in violation of Policy 4(b)(iii)).

Respondent is using the confusingly similar disputed domain name in order to intentionally attract Internet users to its website by creating a strong likelihood of confusion with Complainant`s MYERS-BRIGGS TYPE INDICATOR mark. Respondent presumably profits from this use through the receipt of fees through the resolving website. Thus, the Panel finds that Respondent is attempting to profit from the likelihood of confusion through bad faith registration and use of the disputed domain name pursuant to Policy paragraph 4(b)(iv). See Luck`s Music Library v. Stellar Artist Management, NAF Claim No. FA 95650(finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant`s mark to redirect users to a website that offered services similar to those offered by the complainant); see also State Fair of Texas v. Granbury.com, NAF Claim No. FA 95288 (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant`s goodwill and attract Internet users to the respondent`s website).

The Panel finds Policy paragraph 4(a)(iii) has been 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 <myersbriggstypeindicator.com> domain name be transferred to Complainant.

Sandra J. Franklin
Sole Panelist

Dated: December 7, 2009