Board of Regents, The
Claim Number: FA0806001208350
Complainant is Board of Regents, The
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <texaslonghornbasketball.com>, <texaslonghornchecks.com>, <texaslonghorne.com>, <texaslonghornmerchandise.com>, <texaslonhorn.com>, <universitoftexas.com>, <universityoftexasatarlington.com>, <universityotexas.com>, <universitytexasaustin.com> and <universtiyoftexas.com>, registered with Nameview, Inc.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On June
20, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 10, 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@texaslonghornbasketball.com, postmaster@texaslonghornchecks.com, postmaster@texaslonghorne.com,
postmaster@texaslonghornmerchandise.com, postmaster@texaslonhorn.com, postmaster@universitoftexas.com, postmaster@universityoftexasatarlington.com, postmaster@universityotexas.com, postmaster@universitytexasaustin.com and postmaster@universtiyoftexas.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<texaslonghornbasketball.com>, <texaslonghornchecks.com>,
<texaslonghorne.com>, <texaslonghornmerchandise.com>, <texaslonhorn.com>,
<universitoftexas.com>, <universityoftexasatarlington.com>,
<universityotexas.com>, <universitytexasaustin.com> and
<universtiyoftexas.com> domain names are confusingly similar
to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <texaslonghornbasketball.com>, <texaslonghornchecks.com>, <texaslonghorne.com>, <texaslonghornmerchandise.com>, <texaslonhorn.com>, <universitoftexas.com>, <universityoftexasatarlington.com>, <universityotexas.com>, <universitytexasaustin.com> and <universtiyoftexas.com> domain names.
3. Respondent registered and used the <texaslonghornbasketball.com>, <texaslonghornchecks.com>, <texaslonghorne.com>, <texaslonghornmerchandise.com>, <texaslonhorn.com>, <universitoftexas.com>, <universityoftexasatarlington.com>, <universityotexas.com>, <universitytexasaustin.com> and <universtiyoftexas.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Board of Regents, The University of Texas
System, is a
Respondent registered the disputed domains name during a
period spanning from
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 has sufficiently established
rights in the
The Panel finds that the <universitoftexas.com>, <universityoftexasatarlington.com>,
<universityotexas.com>, <universitytexasaustin.com>and
<universtiyoftexas.com> domain names are confusingly similar to
Complainant’s
Furthermore, the Panel finds that the <texaslonghornbasketball.com>, <texaslonghornchecks.com>,
<texaslonghorne.com>, <texaslonghornmerchandise.com> and
<texaslonhorn.com> domain names are confusingly similar to
Complainant’s LONGHORNS mark under Policy ¶ 4(a)(i). The <texaslonghornbasketball.com>, <texaslonghornchecks.com>,
<texaslonghorne.com>, <texaslonghornmerchandise.com> and
<texaslonhorn.com> domain names all add a geographical term to
Complainant’s mark. As previously stated,
the Panel finds that adding geographic terms to Complainant’s mark do not
distinguish these disputed domain names from Complainant’s LONGHORNS mark for
the purposes of confusing similarity under Policy ¶ 4(a)(i). In addition, the Panel finds that the addition
of generic or descriptive terms such as “basketball,” “checks,” or “merchandise,”
as well as the addition of “e,” do not distinguish the <texaslonghornbasketball.com>, <texaslonghornchecks.com>,
<texaslonghorne.com> and <texaslonghornmerchandise.com> domain
names for the purpose of confusing similarity under Policy ¶
4(a)(i). See Am. Online, Inc. v.
Anytime Online Traffic Sch., FA 146930 (Nat. Arb. Forum Apr. 11,
2003) (finding that the respondent’s domain names, which incorporated the complainant’s entire mark
and merely added the descriptive terms “traffic school,” “defensive driving,”
and “driver improvement” did not add any distinctive features capable of
overcoming a claim of confusing similarity); see also Canadian Tire Corp. v. 849075 Alberta Ltd.,
D2000-0985 (WIPO Oct. 19, 2000) (finding that the domain names
<ecanadiantire.com> and <e-canadiantire.com> are confusingly
similar to Canadian Tire’s trademarks).
Finally, the Panel finds that the <texaslonhorn.com>
domain name
is confusingly similar to Complainant’s LONGHORNS mark because the disputed
domain name is merely a common misspelling of Complainant’ mark. See State
Farm Mut. Auto. Ins. Co. v. Try Harder &
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must first establish a prima facie case that Respondent lacks rights and legitimate
interests in the <texaslonghornbasketball.com>, <texaslonghornchecks.com>,
<texaslonghorne.com>, <texaslonghornmerchandise.com>, <texaslonhorn.com>,
<universitoftexas.com>, <universityoftexasatarlington.com>,
<universityotexas.com>, <universitytexasaustin.com> and
<universtiyoftexas.com> domain names. Once this prima
facie case has been established, the burden then shifts to Respondent and Respondent
must prove that it has rights or legitimate interests in the disputed domain
names. See Compagnie Generale des
Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Respondent is using the disputed domain names to resolve to
websites that display hyperlinks to various third-party websites. The Panel infers that Respondent earns
click-through fees and, therefore, has not made a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor
a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat. Arb. Forum
Sept. 30, 2003) (“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).”); see also WeddingChannel.com
Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that
the respondent’s use of the disputed domain name to
redirect Internet users to websites unrelated to the complainant’s mark,
websites where the respondent presumably receives a referral fee for each
misdirected Internet user, was not a bona fide offering of goods or
services as contemplated by the Policy).
In addition, there is no evidence in the record to show that
Respondent is commonly known by the <texaslonghornbasketball.com>, <texaslonghornchecks.com>,
<texaslonghorne.com>, <texaslonghornmerchandise.com>, <texaslonhorn.com>,
<universitoftexas.com>, <universityoftexasatarlington.com>,
<universityotexas.com>, <universitytexasaustin.com> and
<universtiyoftexas.com> domain names. Without the presentation of such evidence,
the Panel finds that Respondent is not commonly known by the disputed domain
names under Policy ¶ 4(c)(ii). See RMO, Inc. v.
Burbridge, FA 96949 (Nat. Arb. Forum
Finally, the Panel finds that Respondent is using the <universitoftexas.com>, <universityotexas.com> and <universtiyoftexas.com> domain names to take advantage of spelling errors, a practice commonly known as “typosquatting,” to redirect Internet users to the websites resolving from the <universitoftexas.com>, <universityotexas.com> and <universtiyoftexas.com> domain names. Thus, the Panel finds that these activities are evidence that Respondent lacks rights and legitimate interests in these disputed domain names under Policy ¶ 4(a)(ii). IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Based on the uncontested evidence, the Panel finds that Respondent is using the <texaslonghornbasketball.com>,
<texaslonghornchecks.com>, <texaslonghorne.com>,
<texaslonghornmerchandise.com>, <texaslonhorn.com>,
<universitoftexas.com>, <universityoftexasatarlington.com>,
<universityotexas.com>, <universitytexasaustin.com> and
<universtiyoftexas.com> domain
names to divert Internet users to its websites in order to disrupt
Complainant’s business because it provides hyperlinks to third-party
websites. The Panel finds this
disruption of Complainant’s business to constitute bad faith registration and
use under Policy ¶ 4(b)(iii). See Disney
Enters., Inc. v. Noel, FA 198805 (Nat.
Arb. Forum
In addition, the Panel finds that Respondent receives
click-through fees from the hyperlinks to third-party websites displayed on the
websites that resolve from the disputed domain names. This practice creates a likelihood of
confusion as to Complainant’s affiliation with the disputed domain names and
corresponding websites. The Panel finds
this practice to constitute a bad faith registration and use under Policy ¶ 4(b)(iv).
Finally, the Panel finds that Respondent’s use of the <universitoftexas.com>, <universityotexas.com> and <universtiyoftexas.com> domain names to take advantage of spelling errors, a practice commonly known as “typosquatting,” to constitute a bad faith registration and use under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)); see also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy.”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shouldl be GRANTED.
Accordingly, it is Ordered that the <texaslonghornbasketball.com>, <texaslonghornchecks.com>, <texaslonghorne.com>, <texaslonghornmerchandise.com>, <texaslonhorn.com>, <universitoftexas.com>, <universityoftexasatarlington.com>, <universityotexas.com>, <universitytexasaustin.com> and <universtiyoftexas.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: July 31, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum