President & Fellows of Harvard College v. Bobly soghly
Claim Number: FA2001001877431
Complainant is President & Fellows of Harvard College ("Complainant"), represented by Steven A. Abreu of Sunstein Kann Murphy & Timbers LLP, Massachusetts, USA. Respondent is Bobly soghly ("Respondent"), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <harvard-uni.us>, registered with FastDomain Inc..
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 2, 2020; the Forum received payment on January 2, 2020.
On January 2, 2020, FastDomain Inc. confirmed by email to the Forum that the <harvard-uni.us> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On January 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@harvard-uni.us. Also on January 3, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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, the Forum transmitted to the parties a Notification of Respondent Default.
On January 27, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for usTLD 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 usTLD Policy, usTLD Rules, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant was founded in 1636 and is the oldest institution of higher education in the United States, with a current enrollment of more than 18,000 students. Complainant owns U.S. trademark registrations for HARVARD and related marks, and claims that HARVARD is among the world’s most famous and well-known trademarks.
Respondent registered the disputed domain name <harvard-uni.us> in May 2017. The domain name is being used for a website that uses the HARVARD mark and associated logo to promote continuing education services that compete with services offered by Complainant. Complainant states that Respondent is not affiliated with Complainant and has not been licensed or otherwise permitted to use its marks. Complainant suggests that the name under which Respondent registered the domain name is fictitious, and notes that Respondent's contact information appears to be false, as it includes the name of a nonexistent Florida city and an invalid zip code.
Complainant contends on the above grounds that the disputed domain name <harvard-uni.us> is confusingly similar to its HARVARD and related marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered or is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or is being 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."
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon UDRP principles as applicable in rendering its decision.
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. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <harvard-uni.us> incorporates Complainant's registered HARVARD trademark, adding a hyphen, the generic abbreviation "uni" (for "university," which describes Complainant), and the ".us" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., President & Fellows of Harvard College v. Harvard Professional University / Educational Services, FA 1873165 (Forum Dec. 24, 2019) (finding <harvarduni.us> confusingly similar to HARVARD); President & Fellows of Harvard College v. Sunil Shahzad, FA 1802728 (Forum Sept. 18, 2018) (finding <harvard-edu.us> confusingly similar to HARVARD). Accordingly, the Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to pass off as Complainant and promote services that appear to compete with those offered by Complainant. Such conduct does not give rise to rights or legitimate interests under the Policy. See, e.g., President & Fellows of Harvard College v. Harvard Professional University / Educational Services, supra (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered or is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's longstanding famous mark (very likely using fictitious registration data), and is using that domain name to pass off as Complainant and promote services that compete with those offered by Complainant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., President & Fellows of Harvard College v. Harvard Professional University / Educational Services, supra (finding bad faith registration and use in similar circumstances). The Panel so finds.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <harvard-uni.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 29, 2020
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