Claim Number: FA0805001189966
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <baylor-university.com>, registered with Estdomains, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 12, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 13, 2008.
On May 16, 2008, Estdomains, Inc. confirmed by e-mail to the National Arbitration Forum that the <baylor-university.com> domain name is registered with Estdomains, Inc. and that Respondent is the current registrant of the name. Estdomains, Inc. has verified that Respondent is bound by the Estdomains, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
16, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 5, 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.
On June 10, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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:
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <baylor-university.com> domain name.
3. Respondent registered and used the <baylor-university.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent registered the disputed domain name on August 10,
2007. The <baylor-university.com>
domain name currently resolves to rotating parked web pages that display links
that appear to be associated to Complainant, including “
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 Complainant’s extensive registration of
the BAYLOR family of marks and specifically the
The <baylor-university.com> domain name contains Complainant’s complete BAYLOR UNIVERSITY mark, while merely adding a hyphen between “Baylor” and “University,” as well as the generic top-level domain (“gTLD”) “.com.” The addition of “.com” is irrelevant to a Policy ¶ 4(a)(i) analysis. Furthermore, the Panel finds the addition of a hyphen within Complainant’s mark fails to create a sufficient distinction, as the overriding feature of the disputed domain name is Complainant’s mark. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”); see also Easyjet Airline Co. Ltd. v. Harding, D2000-0398 (WIPO June 22, 2000) (finding it obvious that the domain name <easy-jet.net> was virtually identical to the complainant's EASYJET mark and therefore that they are confusingly similar); 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 Complainant has established Policy ¶ 4(a)(i).
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because the Panel finds Complainant has submitted a prima facie case supporting its allegations, Respondent receives the burden to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See 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); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent’s disputed domain name redirects Internet users to rotating parked web pages that host search functions and third-party links in association with Complainant. Respondent presumably receives click-through fees from the website activity, therefore it would be difficult to find 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). Based on these allegations, the Panel concludes that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Pioneer Hi-Bred Int’l Inc. v. Chan, FA 154119 (Nat. Arb. Forum May 12, 2003) (finding that the respondent did not have rights or legitimate interests in a domain name that used the complainant’s mark and redirected Internet users to a website that pays domain name registrants for referring those users to its search engine and pop-up advertisements); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
Respondent offers no evidence to suggest that it is commonly known by the <baylor-university.com> domain name. The WHOIS domain name registration information gives no indication of Respondent being commonly known by the disputed domain name. Therefore, the Panel finds that Respondent 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 Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Complainant has established Policy ¶ 4(a)(ii).
The Panel finds that Respondent’s use of the <baylor-university.com>
domain name to commercially gain by displaying links that appear to be
sponsored by Complainant constitutes bad faith registration and use under
Policy ¶ 4(b)(iii).
See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Complainant contends that Respondent is using the <baylor-university.com>
domain name for commercial gain by displaying links that appear to be sponsored
by Complainant, and financially 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 the
The Panel finds that Complainant has established Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baylor-university.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 24, 2008
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