The American Automobile Association, Inc. v. AAA Vacation Club c/o Conrad Nizynski
Claim Number: FA0803001169994
Complainant is The American Automobile Association, Inc. (“Complainant”), represented by Hope
Hamilton, of Covington & Burling L.L.P.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aaavacationclub.com>, registered with Register.com, Inc.
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
9, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
April 29, 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 <aaavacationclub.com> domain name is confusingly similar to Complainant’s AAA VACATIONS mark.
2. Respondent does not have any rights or legitimate interests in the <aaavacationclub.com> domain name.
3. Respondent registered and used the <aaavacationclub.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Automobile Association, Inc., is in the business of providing travel and
vacation products and services which it offers through affiliated membership
clubs. Complainant registered its AAA
VACATIONS mark with the United States Patent and Trademark Office (“USPTO”) on
Respondent, AAA Vacation Club
c/o Conrad Nizynski, registered the <aaavacationclub.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.
The Panel finds Complainant’s registration of the AAA
VACATIONS mark with the USPTO as sufficient in establishing its rights in the
mark under Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum
Respondent’s <aaavacationclub.com> domain name contains Complainant’s AAA VACATIONS mark with the omission of the “S” and an additional generic term “club,” which has an obvious relationship to Complainant’s business organization of affiliated membership clubs. The addition of the generic top-level “.com” domain name is inconsequential when evaluating if the disputed domain name is confusingly similar to Complainant’s mark. The Panel finds that Respondent’s <aaavacationclub.com> domain name is confusingly similar to Complainant’s AAA VACATIONS mark under 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 Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied); see also 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 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 met.
After Complainant has made a prime facie case that Respondent lacks rights or legitimate interests
in the disputed domain name, Respondent has the burden of proof of establishing
its rights or legitimate interests in the <aaavacationclub.com>
domain name. Respondent’s failure to
respond furthers the presumption alleged by Complainant. The Panel finds that Complainant has
established a prima facie case that
Respondent lacks rights or legitimate interests in the disputed domain name;
however, the Panel chooses to evaluate all of the evidence pursuant to Policy ¶
4(c). See G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Based on the undisputed evidence, the Panel infers that Respondent is using the <aaavacationclub.com> domain name to resolve to a website displaying hyperlinks to Complainant’s competitors to earn click-through fees. Such use does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is 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) because the registrant presumably receives compensation for each misdirected Internet user).
Furthermore, Respondent’s WHOIS information does not demonstrate that Respondent is commonly known by the <aaavacationclub.com> domain name and there is no other evidence in the record to suggest that Respondent is commonly known by the disputed domain name in connection with a legitimate or fair use. The <aaavacationclub.com> domain name resolves to a website featuring a business name of “One Touch Travel” which appears to have no connection with the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <aaavacationclub.com> domain name under Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”); see also Home Builders Inst. v. Nat’l Inst. of Home Builders, Inc., FA 166011 (Nat. Arb. Forum Oct. 3, 2003) (holding that listing the respondent’s trade name, The National Institute of Homebuilders, Inc., as the administrative contact in the WHOIS contact information for <homebuilderinstitute.com>, failed to establish that the respondent was commonly known by the domain name because the respondent could list any administrative contact it desired).
The Panel finds that Policy ¶ 4(a)(ii) has been met.
The Panel finds that Respondent’s use of the <aaavacationclub.com> domain name to advertise
links to competing services creates a disruption to Complainant’s business and
constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Respondent is using the <aaavacationclub.com>
domain name for commercial gain by forwarding Internet users to competing
websites, and benefiting from the likely confusion between Complainant’s mark
and the disputed domain name. The Panel
finds that the similarity between the disputed domain name and Complainant’s
mark are likely to create confusion as to Complainant’s source, sponsorship,
affiliation, or endorsement of the website that resolves from the disputed
domain name, which constitutes bad faith registration and use under Policy ¶
4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091
(WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv)
where the respondent’s domain name resolved to a website that offered links to
third-party websites that offered services similar to the complainant’s
services and merely took advantage of Internet user mistakes); see also
The Panel finds that Policy ¶ 4(a)(iii) has been met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aaavacationclub.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 14, 2008
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