Board of Regents, The
Claim Number: FA0805001195696
Complainant is Board of Regents, The
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <frankerwincenter.com>, registered with Dotster.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 29, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 30, 2008.
On May 29, 2008, Dotster confirmed by e-mail to the National Arbitration Forum that the <frankerwincenter.com> domain name is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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").
6, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 26, 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 July 2, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is a state board established for the purpose of governing The University of Texas System.
Complainant registered the
Complainant operates The University of Texas at
Respondent registered the <frankerwincenter.com> domain name February 23, 2007.
Respondent is not commonly known by the <frankerwincenter.com> domain name,
nor has it ever been the owner or licensee of the
The disputed domain name resolves to a website that features links to third-party
websites offering tickets to events held at the
domain name is identical to Complainant’s
Respondent does not have any rights or legitimate interests in the domain name <frankerwincenter.com>.
Respondent is disrupting Complainant’s business by diverting Internet customers from Complainant’s website to the website that resolves from the disputed domain name.
Such diversion is accomplished through the confusion caused
by the identity between the
Respondent gains commercially from this diversion of Internet users, both through click-through fees and through the unauthorized tickets sales that Respondent facilitates.
Respondent registered and uses the <frankerwincenter.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical to a 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 same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the
Complainant contends that
Respondent’s <frankerwincenter.com> domain name is identical to its
Therefore, we conclude that these insignificant differences render the disputed domain name substantively identical with Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights to and legitimate interests in the <frankerwincenter.com> domain name. Under Policy ¶ 4(a)(ii), once a complainant makes out a prima facie case against a respondent, that respondent has the burden of showing evidence that it does have rights to or legitimate interests in a disputed domain name. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under appropriate circumstances, the assertion by a complainant that a respondent has no right or legitimate interest in a contested domain name is sufficient to shift the burden of proof to that respondent to demonstrate that such a right or legitimate interest exists); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Complainant has made out a prima facie case under Policy ¶ 4(a)(ii). Respondent, for its part, has failed to respond to the Complaint. We are permitted in such circumstances to presume that Respondent has no rights to or interests in the subject domain name. Nonetheless, we will examine the available evidence under the criteria of Policy ¶ 4(c) to determine if there is any basis for concluding that Respondent has such rights or interests.
We begin by noting that Complainant contends, and Respondent
does not deny, that Respondent is not commonly known by the <frankerwincenter.com> domain name,
nor has it ever been the owner or licensee of the
We also observe that there is no dispute as to Complainant’s allegation to the effect that Respondent maintains a website at the <frankerwincenter.com> domain name which features links to third-party websites offering tickets to events held at the Frank Erwin Center, without being affiliated with or licensed so to do by Complainant. This use of the <frankerwincenter.com> domain name 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). See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where a respondent used a complainant’s mark without authorization to attract Internet users to its website, which offered both that complainant’s products and those of its competitors); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that a respondent’s use of a disputed domain name to redirect Internet users to commercial websites unrelated to that complainant, and presumably with the purpose of acquiring a commission or pay-per-click referral fee, did not evidence rights to or legitimate interests in the domain name).
For these reasons, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is disrupting
Complainant’s business by diverting Internet customers from Complainant’s
website to the website that resolves from the disputed domain name. Complainant further alleges that such
diversion is accomplished by the confusion caused by the similarity between the
Complainant also contends, without objection from Respondent, that Respondent gains commercially from its diversion of Internet users, both via receipt of click-through fees and from unauthorized tickets sales that Respondent facilitates. We accept these assertions, and conclude from them that Respondent falls within the parameters of Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003): “Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’” See also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where a respondent’s domain name resolved to a website offering links to third-party websites featuring services similar to a complainant’s; further see Hunter Fan Co. v. MSS, FA 98067 (Nat. Arb. Forum Aug. 23, 2001) (finding bad faith where a respondent used a disputed domain name to mislead Internet users by implying that that respondent was affiliated with a complainant, thus to sell that complainant’s products without permission).
The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <frankerwincenter.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 7, 2008
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