Claim Number: FA0805001189998
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <baylor.com>, registered with eNom, 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.
John J. Upchurch 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 12, 2008, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <baylor.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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").
On May
15, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 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@baylor.com by e-mail.
On June 9, 2008, a purported Response was filed by Respondent. It was received after the deadline for such filing and was thus not in compliance with ICANN Rule #5(a). The Panel notes that it was nonresponsive to the allegations, and the same was not considered by the Panel.
Having received no timely response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 15, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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:
1. Respondent’s <baylor.com> domain name is identical to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylor.com> domain name.
3. Respondent registered and used the <baylor.com> domain name in bad faith.
B. Respondent failed to submit a timely Response in this proceeding.
Complainant,
Respondent, Bryan Graves, registered the <baylor.com> domain name on December 18, 1996, and uses the resolving website to display third-party hyperlinks and references to Complainant and its BAYLOR mark.
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 registration of the BAYLOR mark establishes sufficient rights pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <baylor.com> domain name fully incorporates Complainant’s BAYLOR mark. The addition of the generic top-level domain “.com” is irrelevant when determining if a domain name is identical. Therefore, the Panel finds that the <baylor.com> domain name is identical to Complainant’s BAYLOR mark under Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference").
The Panel finds that Complainant has met Policy ¶
4(a)(i).
Complainant must initially make a prima facie case that Respondent lacks all rights and legitimate interests in the disputed domain name, thereby shifting the burden of proof to Respondent. Respondent’s failure to respond furthers the presumption that Respondent has no rights or legitimate interests in the <baylor.com> domain name. The Panel finds that Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, but chooses to evaluate all of the evidence under Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also 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”).
The Panel infers that Respondent is receiving click-through fees from the third-party links featured on the website resolving from the <baylor.com> domain name. In Bank of America Corp. v. Northwest Free Community Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), the panel found that “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).” The Panel also finds that Respondent’s use does not constitute 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 eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use).
Based on the uncontested record and the WHOIS information that Respondent is commonly known by “Bryan Graves,” Complainant alleges that there is no evidence in the record to show that Respondent is commonly known by the <baylor.com> domain name. The panel in America West Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) found that “Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.” In the instant case, the Panel finds that Respondent is not commonly known by the <baylor.com> domain name pursuant to Policy ¶ 4(c)(ii). See also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”).
The Panel finds that Policy ¶ 4(a)(ii) has been met.
The Panel finds that Respondent is attempting to
commercially benefit from the hyperlinks displayed on the resolving website of
the disputed domain name by advertising competing products and services with
Complainant’s BAYLOR mark. The panel in eBay, Inc v. Progressive Life Awareness
Network, D2001-0068 (WIPO Mar. 16, 2001) found bad faith pursuant to Policy
¶ 4(b)(iv) where the respondent capitalized on the fame associated with the
complainant’s EBAY mark and profited from it by diverting users seeking the
complainant to the respondent’s website.
Similarly, the Panel finds that Respondent’s capital gain from the
identical disputed domain name constitutes evidence that Respondent registered
and is using the disputed domain name in bad faith under Policy ¶
4(b)(iv). See Am. Online,
Inc. v. Miles, FA 105890 (Nat. Arb. Forum
May 31, 2002) (“Respondent is using the domain name at issue to resolve to a
website at which Complainant’s trademarks and logos are prominently
displayed. Respondent has done this with
full knowledge of Complainant’s business and trademarks. The Panel finds that
this conduct is that which is prohibited by Paragraph 4(b)(iv) of the
Policy.”).
Additionally, the Panel finds that
Respondent’s registration and use of an identical disputed domain name is
likely to divert Internet users away from Complainant to competing websites,
thus constituting bad faith registration and use pursuant to Policy ¶
4(b)(iii). See Hewlett Packard
Co. v. Full Sys., FA 94637 (Nat. Arb. Forum May 22, 2000) (finding that the
respondent registered and used the domain name primarily for the purpose of
disrupting the business of the complainant by offering personal e-mail accounts
under the domain name <openmail.com> which is identical to the
complainant’s services under the OPENMAIL mark); 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).
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 <baylor.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: June 23, 2008
National
Arbitration Forum
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