Veterans Advantage Inc v. Christopher Michel
Claim Number: FA0109000100139
Complainant is Veterans Advantage, Inc., Greenwich, CT ("Complainant") represented by Donna Nelson Heller, of Finn, Dixon & Herling LLP. Respondent is Christopher Michel, San Francisco, CA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <veteranadvantage.com>, registered with Network Solutions, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 26, 2001; the Forum received a hard copy of the Complaint on October 1, 2001.
On September 28, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <veteranadvantage.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 1, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 22, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On October 29, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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 Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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.
The <veteranadavantage.com> domain name is confusingly similar to Complainant's mark. Respondent has no rights or legitimate interests in the disputed domain name.
The disputed domain name has been registered and used in bad faith.
B. Respondent did not file a Response in this proceeding.
Since 1999, Complainant has used the VETERANS ADVANTAGE mark on its goods and services relating to books, magazines, newsletters, newspapers, greeting cards, coupons, and posters used to promote benefits and services for military veterans and their families. The mark is also used in relation to conducting various other promotional activities and cooperative efforts with vendors to offer discounts to veterans, as well as educational and computer services.
Complainant filed for federal registration of the trademark on August 10, 2000. Complainant also owns and operates <veteransadvantage.com> in order to provide similar services as mentioned above to the users of the website.
Respondent registered the disputed domain name on October 24, 1999. Respondent is a principal of Military Advantage, Inc. a corporation which conducts business under the trade name <military.com>. Respondent provides services that are similar to those provided by Complainant. Respondent proposed to Complainant that it would create a redirect page that would allow the Internet user to choose between the two websites, but it put <military.com> as the first alternative site instead of Complainant's <veteransadvantage.com>.
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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;
(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.
Identical to and/or Confusingly Similar
Complainant, through continuous and extensive use has established rights in the VETERANS ADVANTAGE mark. The disputed domain name is confusingly similar to Complainant's mark because it is merely a misspelling of Complainant's mark. The <veteranadvantage.com> domain name merely omits the "s" at the end of VETERANS, which is not enough to distinguish the disputed domain name from Complainant's mark. See Victoria’s Secret et al. v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that misspelling words and adding letters to words does not create a distinct mark but is confusingly similar with the Complainant’s marks); see also Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain names "tdwatergouse.com" and "dwaterhouse.com" are virtually identical to Complainant’s TD WATERHOUSE name and mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights to or Legitimate Interests
Complainant has established its rights to and legitimate interests in the VETERANS ADVANTAGE mark. Respondent did not come forward with a response and therefore the Panel may presume that Respondent has no rights or legitimate interests in the <veteranadvantage.com> domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Furthermore, when Respondent fails to submit a response the Panel is permitted to make all inferences in favor of Complainant. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint").
Respondent registered and is using a domain name that contains in its entirety a mark in which Complainant has rights. The domain name is confusingly similar to Complainant’s mark and it furthermore provides services in an area that is similar to Complainant's services. It has been found that the use of a confusingly similar domain name to offer similar services does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4 (c)(i). See The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of the disputed domain names is confusingly similar to Complainant’s mark. Respondent’s use of the domain names to sell competing goods was an illegitimate use and not a bona fide offering of goods).
Furthermore, there is no evidence in the record of this proceeding, and Respondent has offered none, to establish that Respondent is commonly known by the Complainant’s mark that is contained in its entirety in the disputed <veteranadvantage.com> domain name. Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name and is not using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).
Respondent is using Complainant’s mark to intentionally divert Internet users to its own website for its own commercial gain; this is not making legitimate noncommercial, or fair use of the disputed domain pursuant to Policy ¶ 4(c)(iii). See Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
It can be inferred from the circumstances that Respondent registered the disputed domain name to disrupt Complainant's business. Respondent registered the domain name in issue, <veteranadvantage.com>, after Complainant registered its domain name <veteransadvantage.com> and after Respondent registered its other domain name <military.com>. The disputed domain name could easily be entered by an Internet user by mistake and as a result would redirect the user to Respondent's site instead of Complainant's. This effectively channels Complainant's business away from Complainant's website. Registration of a domain name to disrupt Complainant's business is evidence of bad faith. See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the Complainant's marks suggests that the Respondent, the Complainant’s competitor, registered the names primarily for the purpose of disrupting the Complainant's business); see also Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site).
Furthermore, it can be inferred that Respondent by using a domain name confusingly similar to Complainant's intentionally attempted to attract, for commercial gain, Internet users to Respondent's competing website which is evidence of bad faith. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted. Accordingly, it is Ordered that the <veteranadvantage.com> domain name be transferred from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: November 6, 2001.
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