AllSouth Federal Credit Union v. Deng Youqian
Claim Number: FA0806001212652
Complainant is AllSouth Federal Credit Union (“Complainant”), represented by John
C. McElwaine, of Nelson Mullins Riley & Scarborough, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allsouthcreditunion.com>, registered with Rebel.com Corp.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On June 27, 2008, Rebel.com Corp. confirmed by e-mail to the National Arbitration Forum that the <allsouthcreditunion.com> domain name is registered with Rebel.com Corp. and that Respondent is the current registrant of the name. Rebel.com Corp. has verified that Respondent is bound by the Rebel.com Corp. 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 July
2, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 22, 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@allsouthcreditunion.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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <allsouthcreditunion.com> domain name is confusingly similar to Complainant’s ALLSOUTH FEDERAL CREDIT UNION mark.
2. Respondent does not have any rights or legitimate interests in the <allsouthcreditunion.com> domain name.
3. Respondent registered and used the <allsouthcreditunion.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AllSouth Federal Credit Union, is a federally-chartered
credit union that, along with its predecessor-in-interest, has been in
operation since 1960. Complainant
manages over $400 million in assets through twenty locations, and serves over
90,000 customers. Complainant offers
various financial services under the ALLSOUTH FEDERAL CREDIT UNION mark, which
has been registered with the United States Patent and Trademark Office
(“USPTO”) (2,977,711 issued
Respondent registered the <allsouthcreditunion.com> domain name on November 13, 2005. Respondent’s disputed domain name resolves to a website that contains links to various competing financial services websites.
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.
Complainant has established rights in the ALLSOUTH FEDERAL
CREDIT UNION mark for purposes of Policy ¶ 4(a)(i) through registration of the
mark with the USPTO. See Metro.
Life Ins. Co. v. Bin g Glu, FA 874496 (Nat Arb. Forum Feb. 13, 2007)
(finding rights in the METLIFE mark as a result of its registration with the
Complainant contends that Respondent’s <allsouthcreditunion.com> domain name is confusingly similar to Complainant’s mark. Respondent’s disputed domain name contains the dominant features of Complainant’s ALLSOUTH FEDERAL CREDIT UNION mark and merely omits the term “federal” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that neither distinction is sufficient to differentiate Respondent’s domain name from Complainant’s mark in a meaningful way under Policy ¶ 4(a)(i). See Wellness Int’l Network, LTD v. Apostolics.com, FA 96189 (Nat. Arb. Forum Jan. 16, 2001) (finding that the domain name <wellness-international.com> is confusingly similar to the complainant’s WELLNESS INTERNATIONAL NETWORK); see also Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to the complainant’s ASPREY & GARRARD and MISS ASPREY marks); 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 Policy ¶ 4(a)(i) has been satisfied.
In accordance with Policy ¶ 4(a)(ii), the Panel finds that Complainant has met its obligations in first making a prima facie showing that Respondent lacks rights and legitimate interests in the <allsouthcreditunion.com> domain name. Accordingly, the burden is shifted to Respondent to show that it does have rights or legitimate interests in the disputed domain name. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also 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.”).
However, Respondent has failed to submit a response to the
Complaint. Therefore, the Panel may
presume that Respondent has no rights or legitimate interests in the disputed
domain name, but will nonetheless examine the record in consideration of the
elements listed under Policy ¶ 4(c). See Parfums
Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that
by not submitting a response, the respondent has failed to invoke any
circumstance which could demonstrate any rights or legitimate interests in the
domain name); see also Vanguard Group, Inc. v. Collazo,
FA 349074 (Nat. Arb. Forum
Complainant contends that Respondent is neither commonly known by the <allsouthcreditunion.com> domain name nor licensed to register names featuring Complainant’s ALLSOUTH FEDERAL CREDIT UNION mark, or any derivation thereof. The Panel finds that without evidence suggesting otherwise, Respondent has not established rights or legitimate interests in the <allsouthcreditunion.com> domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Complainant has submitted evidence that Respondent is using its <allsouthcreditunion.com> domain name to resolve to a website that features links to various websites offering financial services in direct competition with the services offered by Complainant. The Panel infers from Respondent’s use that it is collecting referral fees for each misdirected Internet user. The Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ (c)(iii). See Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA 100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate interests in the disputed domain name where the respondent was using the complainant’s mark to redirect Internet users to a website offering credit card services unrelated to those services legitimately offered under the complainant’s mark); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the <allsouthcreditunion.com> domain name to operate a website that provides Internet users with links to various competing websites that offer similar financial services as those of Complainant. The Panel finds that Respondent’s use of the disputed domain name constitutes a disruption of Complainant’s business and demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See 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)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Furthermore, Respondent’s use will likely cause confusion as to Complainant’s sponsorship of, and affiliation with, the resulting websites. The Panel finds that use of confusingly similar domain names for Respondent’s own commercial gain is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”).
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 <allsouthcreditunion.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: August 8, 2008
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