Investools Inc v. Ideas
& Business, Managerlab
Claim Number: FA0706001002793
PARTIES
Complainant is Investools Inc (“Complainant”), represented by Paul
C. Van Slyke, of Locke Liddell & Sapp, 600 Travis,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <investools.net>, registered with Network
Solutions, Inc.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on June 11, 2007; the
National Arbitration Forum received a hard copy of the Complaint on June 11, 2007.
On June 11, 2007, Network Solutions, Inc. confirmed by e-mail to
the National Arbitration Forum that the <investools.net> domain name 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. 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 June 13, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 3, 2007 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 postmaster@investools.net by e-mail.
A Response was received in electronic format only on June 20, 2007. Because no hard copy of the Response was
received, the National Arbitration Forum deemed the Response to be deficient
pursuant to Supplemental Rule 5(b). The
Forum notified Respondent of the deficiency on June 20, but did not receive any
further submissions from Respondent.
On July 9, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed David E. Sorkin as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant and its predecessors have operated investor information
services and training courses under the name Investools since 1995. Complainant holds various trademark
registrations for its INVESTOOLS mark on the Principal Register of the U.S.
Patent and Trademark Office, the earliest of which was registered in 1997 and
was first used in commerce in 1995.
Complainant maintains a website at the domain name
<investools.com>, which was registered in 1995 and has been in continuous
use since that date. Complainant
describes itself as “a leader in investor education,” and claims that it has
“graduated over 292,000 students” over the years. Complainant further states that its name is
well known to the public in the United States, as evidenced by national media
attention, and that its name had international reach as early as 1998, based
upon, inter alia, its mention in an
Italian Internet magazine in that year.
Complainant claims to have spent at least $8 million for marketing and
advertising of its services in each year since 2001, and states that its annual
revenues for each of those years exceeded $50 million.
Complainant alleges that the disputed domain name <investools.net> is confusingly similar to its INVESTOOLS
mark. Complainant further alleges that
Respondent lacks rights or legitimate interests with respect to the disputed
domain name, and in support thereof states that Respondent’s only use of the
domain name is in conjunction with a domain parking service. Complainant asserts that Respondent does not
operate a business under the Investools name and is not known by the name; that
Respondent’s actions cause Internet traffic to be improperly diverted from
Complainant’s website; and that Respondent’s interest in the disputed domain
name derives from its awareness of Complainant’s mark and associated
goodwill. Finally, Complainant alleges based
upon the preceding assertions that Respondent registered and is using the
disputed domain name in bad faith.
B. Respondent
Osvaldo Carrillo submitted a brief statement via electronic mail on
Respondent’s behalf, unaccompanied by any supporting evidence. In that statement, Carrillo states that he is
also the registrant of the domain name <investools.es>, registered since
August 2003, and that he is a partner in a Spanish company named “Investools
S.L.” Carillo further states that the
disputed domain name “belongs to me and I still beleave [sic] that we are free
to register the domains names .com .net.”
FINDINGS
The Panel finds that the disputed domain name
<investools.net> is identical
or 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 Respondent registered and has used the disputed domain
name in bad faith.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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;
(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.
The disputed domain name is identical to
Complainant’s registered mark, but for the addition of the “.net” top-level
domain suffix. The Panel finds that the
disputed domain name is identical or confusingly similar to a mark in which
Complainant has rights.
Complainant has made a prima facie showing that Respondent lacks rights or legitimate
interests in respect of the disputed domain name, and the burden therefore
shifts to Respondent to rebut this showing with evidence of its rights or
legitimate interests. See, e.g., Am. Online, Inc. v. Thricovil,
FA 638077 (Nat. Arb. Forum Mar. 22, 2006).
Respondent has failed to introduce any evidence that it is in fact known
by the name Investools, and therefore fails to rebut Complainant’s prima facie showing. Under the circumstances, the Panel concludes
that Complainant has met its burden of proving that Respondent lacks rights or
legitimate interests in respect of the disputed domain name.
Under Paragraph 4(b) of the Policy, evidence
that a domain name registrant has intentionally attempted to attract, for
commercial gain, Internet users to the registrant’s website by creating a
likelihood of confusion with the complainant’s mark serves as evidence of bad
faith. In the Panel’s view, the evidence
supports an inference that Respondent knew of Complainant and its mark when
Respondent registered the disputed domain name, and that Respondent registered
and is using the disputed domain name for the purpose of profiting from Complainant’s
mark by creating a likelihood of confusion.
The Panel therefore concludes that Complainant has met its burden of
proving that Respondent registered and has used the disputed domain name in bad
faith.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <investools.net> domain name be TRANSFERRED
from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 17, 2007
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