Baylor University v. Dan Myers
Claim Number: FA0808001220742
Complainant is Baylor University (“Complainant”), represented by Wendy C. Larson, of 600 Congress Avenue, Suite 2120, Texas, USA. Respondent is Dan Myers (“Respondent”), London, UK.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <baylorhelth.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 15, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 18, 2008.
On August 15, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <baylorhelth.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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
19, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 8, 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@baylorhelth.com by
e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 17, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <baylorhelth.com> domain name is confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorhelth.com> domain name.
3. Respondent registered and used the <baylorhelth.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Baylor University, was chartered in 1845 by the Republic of Texas and is currently the oldest institution of higher learning in Texas. Complainant has long used the BAYLOR mark and its many variations in connection with its goods and services, including medical services. Complainant holds a registration of its BAYLOR mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,465,910 issued November 17, 1987). Complainant’s licensee, Baylor Health Care System (“BHCS”) has been using the BAYLOR mark since at least 1959 including use of the mark on its website resolving from the <baylorhealth.com> domain name.
Respondent registered the <baylorhelth.com> domain name on September 9, 2003. Respondent’s website resolving from the disputed domain name contains several links to various websites offering similar services to that of Complainant’s, some of which are in direct competition with Complainant.
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 BAYLOR mark under Policy ¶ 4(a)(i) because it holds a registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
The <baylorhelth.com> domain name contains Complainant’s entire mark and merely adds a common misspelling of the descriptive term “health.” The Panel finds that the addition of this misspelled descriptive term does not distinguish the disputed domain name from Complainant’s BAYLOR mark for the purposes of confusing similarity under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Caterpillar Inc. v. Quin, D2000-0314 (WIPO June 12, 2000) (finding that the disputed domain names <caterpillarparts.com> and <caterpillarspares.com> were confusingly similar to the registered trademarks CATERPILLAR and CATERPILLER DESIGN because “the idea suggested by the disputed domain names and the registered trademarks is that the goods or services offered in association with [the] domain name are manufactured by or sold by the Complainant or one of the Complainants [sic] approved distributors. The disputed trademarks contain one distinct component, the word Caterpillar.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
At the outset, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the <baylorhelth.com> domain name. The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing pursuant to Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent has failed to submit a response to the Complaint. Therefore, the Panel presumeds that Respondent lacks all rights and legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Nevertheless, the Panel will examine the record to determine if Respondent has any rights or legitimate interests in the <baylorhelth.com> domain name pursuant to Policy ¶ 4(c).
Respondent’s website resolving from the <baylorhelth.com> domain name
displays several hyperlinks to various websites, some of which are in direct
competition with Complainant. The Panel
infers that Respondent receives click-through fees for these links. The Panel therefore finds that Respondent’s
use of the confusingly similar disputed domain name to divert Internet users to
websites that offer competing goods and services for commercial gain is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) and is not 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 Golden Bear Int’l, Inc. v. Kangdeock-ho,
FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name
confusingly similar to Complainant’s mark to divert Internet users to websites
unrelated to Complainant's business does not represent a bona fide offering of
goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii).”).
Furthermore, Respondent’s WHOIS information does not
indicate that Respondent is commonly known by the <baylorhelth.com> domain name and Respondent has not
provided any evidence to suggest otherwise.
The Panel finds that Respondent is not commonly known by the disputed
domain name under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”); see
also Ian Schrager Hotels, L.L.C. v.
Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
Additionally, Respondent is using the disputed domain name to engage in typosquatting. The Panel finds this use of the disputed domain name is evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See 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 Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“Considering the nonsensical nature of the domain name and its similarity to Complainant’s registered and distinctive mark, the Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”).
The finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s <baylorhelth.com>
domain name diverts Internet users through the use of hyperlinks to websites
that offer competing services with that of Complainant’s. The Panel finds that this disruption of
Complainant’s business is evidence of bad faith registration and use under
Policy ¶ 4(b)(iii). See Tribeca Film Ctr., Inc. v. Brusasco-Mackenzie, D2000-1772 (WIPO Apr. 10,
2001) (rejecting the Mission KwaSizabantu approach and holding that “a
respondent can ‘disrupt the business of a competitor’ only if it offers goods
or services that can compete with or rival the goods or services offered by the
trademark owner”); 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).”).
In addition, Respondent receives click through fees from the
hyperlinks displayed on its website that resolves from the <baylorhelth.com> domain name. The Panel finds that this commercial gain
from the confusing similar disputed domain name constitutes bad faith
registration and use under 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 Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
Aug. 21, 2000) (finding bad faith where the respondent directed Internet users
seeking the complainant’s site to its own website for commercial gain).
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
Respondent is using the disputed domain name to capitalize
on Internet users’ typographical omission of the letter “a.” The Panel finds this act of typosquatting is
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See
Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011
(WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words
with [the] intent to intercept and siphon off traffic from its intended
destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of
itself evidence of bad faith.”), see also
Canadian Tire Corp. v. domain adm’r
no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22,
2003) (finding the respondent registered and used the domain name in bad
faith because the respondent “created ‘a likelihood of confusion with the
complainant’s mark as to the source, sponsorship, affiliation, or endorsement
of the Respondent’s web site or location’. . . through Respondent’s persistent
practice of ‘typosquatting’”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baylorhelth.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 1, 2008
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