The McGraw-Hill Companies, Inc. v.
Claim Number: FA0707001043189
Complainant is The McGraw-Hill Companies, Inc. (“Complainant”), represented by Andrew
Baum, of Darby & Darby P.C., 7 World Trade
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dodgereport.com>, registered with Moniker Online Services, 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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 1, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 21, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <dodgereport.com> domain name is confusingly similar to Complainant’s DODGE REPORTS mark.
2. Respondent does not have any rights or legitimate interests in the <dodgereport.com> domain name.
3. Respondent registered and used the <dodgereport.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, McGraw-Hill Companies, Inc.,
is a well-known publisher of textbooks, educational materials, and professional
information. Among other things,
Complainant’s information and media services division publishes daily and
weekly reports on active construction projects in public and private sectors in
Respondent registered the <dodgereport.com> domain name on
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 Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (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. 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.”).
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.
Complainant’s registration of the DODGE REPORTS mark with
the USPTO sufficiently establishes its rights in the mark under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Complainant alleges that
Respondent’s <dodgereport.com> domain
name is confusingly similar to Complainant’s DODGE REPORTS mark. The Panel agrees, as the disputed domain name
only differs from the mark in that it omits the “s” at the end of the
mark. This slight alteration is not
enough to overcome a finding of confusing similarity under the Policy. Moreover, the addition of the generic
top-level domain “.com” to the mark is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is a required element
of all domain names. Therefore, the
Panel finds that the <dodgereport.com>
domain name is confusingly similar to Complainant’s DODGE REPORTS mark
pursuant to Policy ¶ 4(a)(i). See Universal
City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000)
(finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS
STORE mark did not change the overall impression of the mark and thus made the
disputed domain name confusingly similar to it); see also Isleworth Land Co. v.
Lost in Space, SA, FA 117330 (Nat. Arb. Forum
The Panel thus finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), the initial burden lies with Complainant to prove that Respondent lacks rights and legitimate interests in the <dodgereport.com> domain name. Once Complainant has made a prima facie case, however, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. In the present case, the Panel finds that Complainant has established a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Based on Respondent’s failure to answer the Complaint, the
Panel presumes that Respondent lacks rights and legitimate interests in the <dodgereport.com> domain
name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO
Respondent’s <dodgereport.com> domain name resolves to a website featuring links to third-party websites unrelated to Complainant, and the Panel presumes that Respondent accrues click-through fees when Internet users click on these links. The Panel finds that this does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark--websites where the respondent presumably receives a referral fee for each misdirected Internet user--was not a bona fide offering of goods or services as contemplated by the Policy); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
In addition, Complainant alleges
that Respondent is not commonly known by the disputed domain name, which
indicates a lack of rights and legitimate interests under Policy ¶ 4(c)(ii). There is
nothing in the record, including Respondent’s WHOIS information, to suggest
that Respondent is commonly known by the <dodgereport.com>
domain name, and Complainant has not authorized Respondent to use the DODGE
REPORTS mark in any way. Thus, the Panel
finds that Respondent also lacks rights and legitimate interests pursuant to
Policy ¶ 4(c)(ii).
See Ian Schrager Hotels, L.L.C. v. Taylor,
FA 173369 (Nat. Arb. Forum
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant also alleges that Respondent registered and is using the <dodgereport.com> domain name, which is confusingly similar to Complainant’s DODGE REPORTS mark, in bad faith pursuant to Policy ¶ 4(a)(iii). The Panel agrees, as Respondent is using the disputed domain name to redirect Internet users, presumably seeking Complainant’s reports, to a website from which Respondent benefits commercially. Respondent is taking advantage of the likelihood that users will confuse the source of the <dodgereport.com> domain name as being affiliated with Complainant. Thus, the Panel finds evidence of Respondent’s bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iv). See American. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dodgereport.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: September 7, 2007
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