Claim Number: FA0802001142634
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 13, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 4, 2008 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@baylormedicalcenteratirving.com, postmaster@baylorhealthcaregarland.com, postmaster@baylormedicalcenterhospital.com, postmaster@baylorregionalmedicalcenter.com, postmaster@baylorcollegemedicine.com, postmaster@baylorschools.org, and postmaster@baylorbanks.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 <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names are confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names.
3. Respondent registered and used the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>,
<baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>,
<baylorcollegemedicine.com>, <baylorschools.org>, and
<baylorbanks.com> domain names on dates between
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 contends that the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names are confusingly similar to Complainant’s mark. Each of Respondent’s disputed domain names contain Complainant’s BAYLOR mark and adds a combination of the generic or geographic terms “medical,” “at,” “irving,” “health,” “care,” “garland,” “hospital,” “regional,” “college,” “schools,” and “banks.” The Panel finds that Respondent’s domain name contains the dominant portion of Complainant’s mark. In addition, each of Respondent’s domain names adds the generic top-level domain (“gTLD”) “.com” or “.org.” The Panel finds that neither the addition of generic or geographic terms, nor a gTLD sufficiently differentiates Respondent’s domain names from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., D2001-0075 (WIPO Mar. 6, 2001) (finding that the domain name <christiesauction.com> is confusingly similar to the complainant's mark since it merely adds the word “auction” used in its generic sense); see also 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).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names. In instances where Complainant has made a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain names. The Panel finds that Complainant has satisfied its burden. 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”).
Complainant contends that Respondent is using the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names to operate websites that contain various links to health care, medical insurance and financial services websites. The Panel infers from Respondent’s use that it is likely collecting click-through fees for each Internet user passed through to an unrelated commercial website. The Panel finds that Respondent’s use of domain names confusingly similar to Complainant’s well-known mark for the purpose of collecting click-through fees for each misdirected Internet user is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also 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).
Moreover, Respondent has submitted no evidence that it is
either commonly known by the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>,
<baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>,
<baylorcollegemedicine.com>, <baylorschools.org>, and
<baylorbanks.com> domain names or authorized to register
domain names featuring Complainant’s BAYLOR mark. The WHOIS information for each of the
disputed domain names lists the registrant as “Domain
Park Limited,” a name with no apparent connection to the disputed domain
names or the resulting websites. In the
absence of evidence suggesting a connection between the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>,
<baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>,
<baylorcollegemedicine.com>, <baylorschools.org>, and
<baylorbanks.com> domain names and its business, the Panel
finds that Respondent has not established rights or legitimate interests
pursuant to Policy ¶ 4(c)(ii). See also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant contends that Respondent is using the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names to operate a website that contains links to various commercial websites. The Panel infers from Respondent’s use that it is collecting click-through fees for each misdirected Internet user. Moreover, Internet users will likely be confused as to Complainant’s sponsorship of or affiliation with the <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names and its resulting websites. The Panel finds that using domain names that are likely to confuse Internet users so that Respondent can gain financially based on that confusion, is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent).
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 <baylormedicalcenteratirving.com>, <baylorhealthcaregarland.com>, <baylormedicalcenterhospital.com>, <baylorregionalmedicalcenter.com>, <baylorcollegemedicine.com>, <baylorschools.org>, and <baylorbanks.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 25, 2008
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