Claim Number: FA0807001217130
Complainant is Saskatchewan Tourism Authority (“Complainant”), represented by Keith D. Kilback, of Kanuka Thuringer LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <saskatchewantourism.com>, registered with Allindom.
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 July 23, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 28, 2008.
On July 28, 2008, Allindom confirmed by e-mail to the National Arbitration Forum that the <saskatchewantourism.com> domain name is registered with Allindom and that Respondent is the current registrant of the name. Allindom has verified that Respondent is bound by the Allindom 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 August 5, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 25, 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 September 2, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <saskatchewantourism.com> domain name is confusingly similar to Complainant’s SASKATCHEWAN TOURISM AUTHORITY mark.
2. Respondent does not have any rights or legitimate interests in the <saskatchewantourism.com> domain name.
3. Respondent registered and used the <saskatchewantourism.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Saskatchewan Tourism Authority, is a Canadian government sponsored body established under The Tourism Authority Act passed in 1994 for the purpose of of facilitating the marketing of tourism, the provision of visitor information services, the education and training of individuals involved in the tourism industry and the administration of tourism funding programs. Complainant owns a trademark regstiration in the SASKATCHEWAN TOURISM AUTHORITY mark with the Canadian Intellectual Property Organization (“CIPO”) (Reg. No. TMA499435 issued Aug. 27, 1998).
Respondent registered the <saskatchewantourism.com> domain name on March 26, 2008. Respondent’s domain name resolves to a website featuring links to commercial websites offering Canadian travel information and services in direct competition with Complainant’s own travel services.
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 contends that it has rights in the SASKATCHEWAN TOURISM AUTHORITY mark through registration of the mark with the CIPO. The Panel finds that Complainant’s registration is sufficient to establish rights in the mark for purposes of Policy ¶ 4(a)(i). See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have rights or legitimate interests in the <saskatchewantourism.com> domain name under Policy ¶ 4(a)(ii). Past panels have found under certain circumstances that a complainant’s allegations are sufficient to establish a prima facie case. Here, the Panel finds that Complainant has established a prima facie case under the Policy, shifting the burden of proof from Complainant to Respondent. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests).
Respondent is using the <saskatchewantourism.com> domain name for the purpose of redirecting Internet users to a website that features links to competing Canadian travel services websites. The Panel infers from Respondent’s use that it is collecting referral fees for each misdirected Internet user connected to a competing website. Such use is nether a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii). See ALPITOUR S.p.A. v. Ali Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name as the respondent is merely using the domain name to operate a website containing links to various competing commercial websites, which 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 ¶ 4(c)(iii)); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 5, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it is not using the domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant contends that Respondent is not commonly known by the <saskatchewantourism.com> domain name. The WHOIS information listed in connection with the disputed domain name lists the registrant as “RevenueDirect.” In the absence of evidence suggesting otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name for purposes of 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).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the <saskatchewantourism.com> domain name to connect Internet users to commercial websites offering Canadian travel information and services in direct competition with Complainant’s own travel services. The Panel finds that Respondent’s use amounts to disruption of Complainant’s business in violation of Policy ¶ 4(b)(iii) and is evidence of bad faith registration and use. See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
Furthermore, Complainant contends that Internet users will likely be confused when searching for Complainant’s legitimate website. The Panel infers that Respondent profits from such use and considers this as further evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”).
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 should be GRANTED.
Accordingly, it is Ordered that the <saskatchewantourism.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: September 16, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum