Board of Regents, The
Claim Number: FA0809001225414
Complainant is Board of Regents, The
The domain name at issue is <universityoftexasfootball.com>, registered with Godaddy.com, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On September 24, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 14, 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.
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:
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <universityoftexasfootball.com> domain name.
3. Respondent registered and used the <universityoftexasfootball.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is the governing body of the entire
domain name was registered on
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 sufficiently established rights in the
The <universityoftexasfootball.com> domain name
contains Complainant’s UNIVERISTY OF TEXAS mark in its entirety followed by the
descriptive term “football” and the generic top-level domain (“gTLD”)
“.com.” It is well-established that the
inclusion of a gTLD is not relevant to a Policy ¶ 4(a)(i) analysis. Moreover, the addition of the term “football”
does not adequately distinguish the disputed domain name. The term “football” describes specifically
the collegiate sport and team that Complainant engages in and maintains under
the UNIVERISTY OF TEXAS mark. For all of
these reasons, the Panel finds that the <universityoftexasfootball.com>
domain name is confusingly similar to Complainant’s
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Before the Panel may examine the record in consideration of
Policy ¶ 4(a)(ii), Complainant must offer a prima
facie case that Respondent lacks rights and legitimate interests in the
disputed domain name. The Panel finds
that this threshold has been met and accordingly looks to Respondent to prove
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
However, no response has been filed in this case. Therefore, the Panel presumes that Respondent
lacks rights and legitimate interests in the disputed domain name. In order to substantiate this presumption,
the Panel will proceed to examine the Complaint and exhibits in the record in
consideration of the elements listed under Policy ¶ 4(c). See
Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that
the respondent has no rights or legitimate interests in the domain name because
the respondent never submitted a response or provided the panel with evidence
to suggest otherwise); see also Broadcom Corp. v. Ibecom
Complainant asserts that the disputed domain name is not
used to identify Respondent. There is no
additional information in the record, except for the WHOIS Information which
only identifies Respondent under the alias “Hank Gathers.” Without any additional information, 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
The disputed domain name resolves to a website displaying a series of links to third-parties, most of whom offer goods or services that directly compete with Complainant. Many of these links are identified with Complainant’s mark or by the “longhorn” mascot for Complainant’s school and football team. The Panel considers this use to be 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 Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 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 was not using a 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)); 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).”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <universityoftexasfootball.com> domain name resolves to a website listing and advertising third-party competitors of Complainant. The Panel considers this use to be disruptive and to accordingly establish that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Complainant agues that the Panel may presume that Respondent
is paid a fee or commission for each Internet user who engages Respondent’s <universityoftexasfootball.com>
domain name and is redirected to a third-party that competes or is otherwise
unassociated with Complainant. The Panel
agrees and likewise finds that this financial and commercial use is additional
evidence of Respondent’s bad faith registration and use of the disputed domain
name pursuant to Policy ¶ 4(b)(iv). See
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 <universityoftexasfootball.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice Supreme Court, NY (Ret.)
Dated: November 4, 2008
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