Claim Number: FA0709001082272
Complainant is Baylor University (“Complainant”), represented by William
G. Barber, 600 Congress Avenue, Suite 2120, Austin, TX 78701. Respondent is Kevin Daste (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <baylorhospitals.com>, registered with Fabulous.com Pty Ltd., and <bayloredu.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
On
On October
3, 2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
October 23, 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@baylorhospitals.com and
postmaster@bayloredu.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <baylorhospitals.com> and <bayloredu.com> domain names are confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorhospitals.com> and <bayloredu.com> domain names.
3. Respondent registered and used the <baylorhospitals.com> and <bayloredu.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <baylorhospitals.com> domain name on
Respondent has also been the respondent in several previous
UDRP decisions in which the disputed domain names in those cases were
transferred from Respondent to the respective complainants. E.g., Smiths Group plc v. Kevin Daste, FA 662360 (Nat. Arb. Forum
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.
The Panel finds that, through its registration of the BAYLOR
mark with the USPTO, Complainant has sufficiently established its rights in the
BAYLOR mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
The <baylorhosptials.com> domain name incorporates the entire BAYLOR mark and simply adds the generic term “hospitals,” which is clearly descriptive of an aspect of Complainant’s business. In the same way, the <bayloredu.com> domain name includes the BAYLOR mark and adds the letters “edu,” which is a common abbreviation of the word “education” and also descriptive of Complainant. Previous panels have found, and this Panel so finds, that the addition of a generic, descriptive term to a mark does not negate any confusingly similarity between a disputed domain name and a corresponding mark.
Moreover, both of the disputed domain names also include the
generic top-level domain (“gTLD”) “.com.”
However, as a top-level domain is required of all domain names,
Respondent’s addition of a gTLD to the disputed domain names in this case is
irrelevant. Rollerblade,
Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the
top level of the domain name such as “.net” or “.com” does not affect the
domain name for the purpose of determining whether it is identical or
confusingly similar). Therefore, the
Panel finds that the <baylorhospitals.com>
and <bayloredu.com> domain
names are confusingly similar to Complainant’s BAYLOR mark pursuant to Policy ¶
4(a)(i). See Space
Imaging LLC v. Brownell, AF-0298 (eResolution
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the <baylorhospitals.com> and <bayloredu.com> domain names. Once Complainant makes a prima facie case to prove this assertion, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. 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”).
Respondent has not submitted a response to the Complaint in
this proceeding. Therefore, the Panel
presumes that Respondent lacks rights and legitimate interests in the disputed
domain names. See Am. Express Co. v. Fang Suhendro,
FA 129120 (Nat. Arb. Forum
Complainant contends that Respondent is not commonly known
by the <baylorhospitals.com> and <bayloredu.com>
domain names. The Panel
agrees, as there is nothing in the record, including Respondent’s WHOIS
information, to suggest that Respondent is known by the disputed domain names,
and Respondent has not been authorized by Complainant to use its BAYLOR mark
for any purpose. Accordingly, the Panel
finds that Complainant lacks rights and legitimate interests in the <baylorhospitals.com> and <bayloredu.com>
domain names under Policy ¶ 4(c)(ii). See Victoria’s Secret v. Asdak, FA 96542 (Nat. Arb. Forum
Feb. 28, 2001) (“Given the Complainants’ established use of their famous
Respondent’s <baylorhospitals.com> and <bayloredu.com> domain names resolve to websites featuring links to third-party websites in direct competition with Complainant’s educational and medical services. The Panel presumes that Respondent receives click-through fees from these links. Such use constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), and further indicates Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
As mentioned previously, the Panel presumes that Respondent
benefits commercially when Internet users click on the links contained on the
websites that resolve from the disputed domain names, which are confusingly similar
to Complainant’s BAYLOR mark. Respondent
is thus capitalizing on the likelihood that users, presumably seeking
Complainant’s services, will be confused as to Complainant’s affiliation with
the disputed domain names. As such, the
Panel finds that Respondent registered and is using the <baylorhospitals.com> and <bayloredu.com>
domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See Amazon.com,
Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain
name at issue in direct competition with Complainant, and giving the impression
of being affiliated with or sponsored by Complainant, this circumstance
qualifies as bad faith registration and use of the domain name pursuant to
Policy ¶ 4(b)(iv).”); see also Associated Newspapers
Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003)
(“Respondent's prior use of the <mailonsunday.com> domain name is
evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name
provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”).
Respondent is using the disputed domain names to display links in direct competition with Complainant’s business. The Panel finds that this constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Furthermore, Respondent has been the respondent in several
previous UDRP decisions in which the disputed domain names in those cases were
transferred from Respondent to the respective complainants. E.g., Smiths Group plc v. Kevin Daste, FA 662360 (Nat. Arb. Forum
The Panel 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 <baylorhospitals.com> and <bayloredu.com> domain names be TRANSFERRED from Respondent to Complainant.
Dated: November 9, 2007
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