Claim Number: FA0805001191541
Complainant is Acton Educational Services d/b/a West
Coast University, (“Complainant”)
represented by Michelle A. Hon, of Duane
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <westcoastuniversity.us>, registered with Omnis Networks, LLC.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On May 27, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 16, 2008 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the Rules, the 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.
domain name is identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <westcoastuniversity.us> domain name.
3. Respondent registered and used the <westcoastuniversity.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Acton Educational Services,
conducts business under the
Respondent registered the <westcoastuniversity.us> domain name
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 the Complainant's undisputed representations pursuant to Paragraphs 5(f), 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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Identical and/or Confusingly Similar
Complainant asserts rights to the
Panel notes that Complainant has shown that its rights in the mark predate
Respondent’s registration of the <westcoastuniversity.us>
domain name. Complainant has offered
educational services under the
Respondent’s <westcoastuniversity.us> domain name
contains Complainant’s entire unchanged WEST COAST UNIVERSITY mark, but removes
the spaces between the terms and adds the country-code top-level domain
(“ccTLD”) “.us.” These changes are both
irrelevant under the Policy since they are limitations and requirements of
domain names. Therefore, the Panel
concludes that Respondent’s <westcoastuniversity.us>
domain name is identical to Complainant’s
The Panel finds that Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Complainant has alleged that Respondent does not have rights or legitimate interests in the <westcoastuniversity.us> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
The Panel has
examined all the evidence in the record, and underscores Respondent’s failure
to respond to the Complaint. Thus,
Respondent has not set forth any basis to find that it holds rights to any mark
identical to the <westcoastuniversity.us>
domain name. Accordingly, Respondent
cannot satisfy Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum
Similarly, while the WHOIS information
identifies Respondent as “West Coast University International Inc,” there is no
affirmative evidence in the record proving Respondent’s identity. On the contrary, Complainant notes that
Respondent is not licensed or authorized to use Complainant’s
Complainant has evidenced Respondent’s use of the <westcoastuniversity.us> domain name in an attempt to represent itself as Complainant’s educational institution. The resolving website prominently displays Complainant’s mark and information regarding educational services, and also asks for potential applicants’ personal and financial information. The Panel finds that Respondent is attempting to “pass itself off” as Complainant and “phish” for customers’ confidential information, which are uses that do not conform with a bona fide offering of goods or services under Policy ¶ 4(c)(ii), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to UDRP ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to UDRP ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration or Use in Bad Faith
The Panel agrees with Complainant’s
contention that, based upon Respondent’s use of the <westcoastuniversity.us> domain name,
Internet users are likely to mistakenly believe that the resolving website is
operated by Complainant. Respondent is
also attempting to obtain customers’ confidential financial and personal
information. This likelihood of
confusion is for Respondent’s commercial gain, and therefore evidences Respondent’s
registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See Capital One Fin. Corp. v. Howel,
FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and
use because the respondent used the domain name to redirect Internet users to a
website that imitated the complainant’s website and to fraudulently acquire
personal information from the complainant’s clients); see also Hess Corp. v. GR,
FA 770909 (Nat. Arb. Forum
Respondent’s attempt to pass itself off as Complainant also evidences bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <westcoastuniversity.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: July 2, 2008
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