Claim Number: FA0802001142636
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <baylorfrisco.com>, registered with Name.com LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On February 18, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 10, 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 firstname.lastname@example.org 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 <baylorfrisco.com> domain name is confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorfrisco.com> domain name.
3. Respondent registered and used the <baylorfrisco.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent registered the <baylorfrisco.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.
First, the Panel finds that Complainant’s registration of
the BAYLOR mark with the USPTO sufficiently establishes Complainant’s rights in
the mark pursuant to Policy ¶ 4(a)(i). See Men’s
Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002)
Respondent’s <baylorfrisco.com> domain name is confusingly similar to
Complainant’s BAYLOR mark, as the disputed domain name includes the entire mark
and merely adds the geographic term “frisco,” which is clearly related to a
place where Complainant does business. The
addition of a geographic term to a mark does not render a disputed domain name
distinct from the mark. Although the
disputed domain name also adds the generic top-level domain “.com,” it is
well-established that top-level domains are irrelevant under the UDRP. Thus, the Panel concludes that the <baylorfrisco.com> domain name is
confusingly similar to Complainant’s BAYLOR mark pursuant to Policy ¶
4(a)(i). See AXA China Region Ltd. v. KANNET Ltd., D2000-1377
(WIPO Nov. 29, 2000) (finding that the <axachinaregion.com> domain name
“is confusingly similar to the Complainant's trade mark ‘AXA’” because “common
geographic qualifiers or generic nouns can rarely be relied upon to
differentiate the mark if the other elements of the domain name comprise a mark
or marks in which another party has rights”); see also Net2phone Inc. v.
Netcall SAGL, D2000-0666 (WIPO Sept. 26, 2000) (finding that the
respondent’s domain name <net2phone-europe.com> is confusingly similar to
the complainant’s mark because “the
combination of a geographic term with the mark does not prevent a domain name
from being found confusingly similar"); see also Gardline Surveys Ltd.
v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
The Panel notes that Complainant has the initial burden of showing that Respondent lacks rights and legitimate interests in the <baylorfrisco.com> domain name. Once Complainant makes a prima facie case, however, the burden shifts to Respondent to refute that showing. The Panel finds that Complainant has established a prima facie case as required by 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”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
As Respondent failed to answer the Complaint in this proceeding, the Panel presumes that Respondent lacks rights and legitimate interests in the <baylorfrisco.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Wild West Domains, Inc. v. Jung, D2004-0243 (WIPO May 18, 2004) (“It can be inferred that by defaulting Respondent showed nothing else but an absolute lack of interest in the Domain Name . . . . It is incumbent on Respondent to contribute to the fact-finding and if contrary to that, it rather incurs in default, there is nothing that the Panel could do to discuss in its benefit.”). However, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent’s <baylorfrisco.com> domain name resolves to a website featuring hyperlinks to third-party websites, some of which offer services in competition with Complainant. The Panel presumes that Respondent earns click-through fees when Internet users click on these links. As such, the Panel finds that Respondent is not using the <baylorfrisco.com> domain name in connection with either 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 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); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
There is nothing in the record, including Respondent’s WHOIS information, to suggest that Respondent is commonly known by the <baylorfrisco.com> domain name, and Complainant asserts that it has not given Respondent permission to use its BAYLOR mark for any purpose. Therefore, the Panel concludes that Respondent is not commonly known by the <baylorfrisco.com> domain name, which further indicates a lack of rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain name to redirect
Internet users to a website featuring hyperlinks to third-party websites, some
of which are in competition with Complainant.
Respondent is thus using this website to attract, for commercial gain,
Internet users who may be confused as to Complainant’s affiliation with the
disputed domain name and corresponding websites. Under these facts, the Panel finds that
Respondent registered and is using the <baylorfrisco.com>
domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
The Panel finds 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 <baylorfrisco.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 27, 2008
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