Claim Number: FA0808001220900
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <baylorofirving.com>, <baylorhospitalgarland.com>, <baylornursery.com>, <baylorrivals.com> and <baylorumc.com>, registered with Above, 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 18, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 19, 2008.
On August 21, 2008, Above, Inc. confirmed by e-mail to the National Arbitration Forum that the <baylorofirving.com>, <baylorhospitalgarland.com>, <baylornursery.com>, <baylorrivals.com> and <baylorumc.com> domain names are registered with Above, Inc. and that Respondent is the current registrant of the names. Above, Inc. has verified that Respondent is bound by the Above, 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 22, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 11, 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@baylorofirving.com, postmaster@baylorhospitalgarland.com, postmaster@baylornursery.com, postmaster@baylorrivals.com and postmaster@baylorumc.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 23, 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <baylorofirving.com>, <baylorhospitalgarland.com>, <baylornursery.com>, <baylorrivals.com> and <baylorumc.com> domain names are confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorofirving.com>, <baylorhospitalgarland.com>, <baylornursery.com>, <baylorrivals.com> and <baylorumc.com> domain names.
3. Respondent registered and used the <baylorofirving.com>, <baylorhospitalgarland.com>, <baylornursery.com>, <baylorrivals.com> and <baylorumc.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent’s <baylorofirving.com>, <baylorhospitalgarland.com>
and <baylorrivals.com> domain names were registered on
February 12, 2008. Respondent’s <baylorumc.com>
domain name was registered on February 25, 2008. Respondent’s <baylornursery.com> domain name was registered on May 18, 2008. The <baylorofirving.com> domain
name resolves to a monetized parked web page entitled “baylorofirving.com” and
displays links related to the
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 asserts and provides evidence of several trademark registrations for the BAYLOR mark with the USPTO. Consequently, the Panel finds that Complainant’s registration of the BAYLOR mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See VICORP Rests., Inc. v. Triantafillos, FA 485933 (Nat. Arb. Forum July 14, 2005) (“Complainant has established rights in the BAKERS SQUARE mark by registering it with the United States Patent and Trademark Office (“USPTO”).”); see also Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (“Complainant owns a United States Patent and Trademark Office (‘USPTO’) registration issued September 5, 2000 for the RBK mark. This trademark registration is adequate to establish rights pursuant to Policy ¶ 4(a)(i).”).
Each
of the <baylorofirving.com>, <baylorhospitalgarland.com>,
<baylornursery.com>, <baylorrivals.com> and <baylorumc.com>
domain names contain the BAYLOR mark in its entirety and the generic
top-level domain (“gTLD”) “.com.” Each
disputed domain name then contains either the geographic designation “of
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
As an initial threshold, Policy ¶ 4(a)(ii) requires that
Complainant demonstrate a prima facie
case that Respondent lacks rights and legitimate interests in the disputed
domain name before a UDRP proceeding may be continued. See
VeriSign Inc. v. VeneSign
However, Respondent has submitted nothing in this case. Therefore, the Panel may presume that Respondent lacks all rights and legitimate interests in the disputed domain name. Nevertheless, the Panel will proceed to examine the record in consideration of the elements listed under Policy ¶ 4(c). See Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
WHOIS information lists solely “Transure Enterprise Ltd.” for each of the disputed domain names and Complainant contends that Respondent has never been granted permission or license to use the BAYLOR mark in anyway. Without any additional information in the record, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).
All of the disputed domain names lead to web pages that
display monetized links to unrelated third parties. The Panel infers a commercial benefit to
Respondent through the accrual of click-through fees. Therefore, the Panel finds that this use of
the disputed domain names does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8,
2007) (concluding that the operation of a pay-per-click website at a
confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate
noncommercial or fair use, regardless of whether or not the links resolve to
competing or unrelated websites or if the respondent is itself commercially
profiting from the click-through fees);
see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar.
27, 2007) (holding that the operation of a pay-per-click website at a
confusingly similar domain name was not 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)).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has been ordered to transfer disputed domain
names by at least four prior UDRP panels.
See State Farm Mut. Auto. Ins. Co.
v. Transure Enter. Ltd., FA
1176762 (Nat. Arb. Forum May 22, 2008); see also Eldorado Stone Ops. LLC v. Transure Enter. Ltd., D2008-0684 (WIPO July 2, 2008); see also F.
Hoffman-La Roche AG v. Transure Enter. Ltd., D2008-0422 (WIPO May 26, 2008); see also
Wolters Kluwer U.S. Corp. v. Transure Enter. Ltd., D2008-0384 (WIPO
April 24, 2008). The Panel finds this
sufficient to establish that Respondent is engaging in a pattern of registering
disputed domain names. Therefore, the
Panel presumes that Respondent has registered the <baylorofirving.com>, <baylorhospitalgarland.com>, <baylornursery.com>,
<baylorrivals.com> and <baylorumc.com> domain
names in bad faith pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo
Fashions Ltd. v.
The Panel also finds that Respondent’s registration of the
confusingly similar disputed domain names was intentionally designed to create
confusion between Complainant’s mark and the disputed domain names and
corresponding websites for Respondent’s commercial gain. Therefore, the Panel finds that Respondent
engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen,
FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s
previous use of the <bankofamericanfork.com> domain name to maintain a
web directory was evidence of bad faith because the respondent presumably
commercially benefited by receiving click-through fees for diverting Internet
users to third-party websites); see also Ass’n of Junior Leagues Int’l Inc. v. This
Domain Name My Be For
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baylorofirving.com>, <baylorhospitalgarland.com>, <baylornursery.com>, <baylorrivals.com> and <baylorumc.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 7, 2008
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