AARP v. Tina Whittle
Claim Number: FA0810001230624
Complainant is AARP (“Complainant”), represented by John J. Dabney, of McDermott Will & Emery LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aarpmedicareplans.com>, registered with Tucows 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 23, 2008; the National Arbitration Forum received a hard copy of the Complaint on October 23, 2008.
On October 23, 2008, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <aarpmedicareplans.com> domain name is registered with Tucows Inc. and that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is bound by the Tucows 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 October 24, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 13, 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 November 19, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <aarpmedicareplans.com> domain name is confusingly similar to Complainant’s AARP mark.
2. Respondent does not have any rights or legitimate interests in the <aarpmedicareplans.com> domain name.
3. Respondent registered and used the <aarpmedicareplans.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AARP, is a non-profit organization that
maintains offices in every state in the
Respondent registered the disputed <aarpmedicareplans.com> domain name on December 31, 2007. The disputed domain name previously resolved to a parked web page with third-party links. Upon receipt of Complainant’s cease-and-desist requests, the disputed domain name thereafter resolved to the <yahoo.com> homepage.
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’s registration of the AARP mark with the USPTO confers upon Complainant sufficient rights in the mark pursuant to Policy ¶ 4(a)(i). 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.").
Complainant contends that the disputed <aarpmedicareplans.com> domain name is confusingly similar to Complainant’s AARP mark. The disputed domain name contains Complainant’s entire AARP mark, while adding the generic phrase “medicare plans” and the generic top-level domain (“gTLD”) “.com.” The addition of the gTLD is irrelevant under Policy ¶ 4(a)(i). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Moreover, the phrase “medicare plans” could aptly describe Complainant’s offering of insurance products to its members. Thus, this phrase tends to heighten the existing confusing similarity. See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant has set forth a sufficient prima facie case, Respondent bears the burden of demonstrating that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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 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.”).
Because Respondent has failed to submit a Response in this proceeding, the evidence in the record is therefore entirely drawn from Complainant’s Complaint. Complainant has denied any authorization on behalf of Respondent to use the AARP mark in any form. Likewise, Respondent cannot fairly be said to be commonly known by the disputed domain name at any time. What little information the Panel can scrutinize regarding Respondent as it relates to the disputed domain name is entirely within the registrant listing in the WHOIS domain name registration information. However, that listing describes the registrant as “Tina Whittle.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii), and thus lacks rights and legitimate interests under Policy ¶ 4(a)(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 Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent has utilized the disputed domain name to resolve
to unrelated websites. The first
instance involved a corresponding webpage including click-through links. The Panel presumes this activity was
undertaken to acquire commercial benefit via click-through referral fees. Thereafter, the second instance involved
resolving the disputed domain name to a third-party commercial homepage. The Panel finds that neither of these
activities constitutes 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). See
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name once resolved to a commercial parked web page with unrelated third-party links and advertisements. Because the Panel presumes a commercial intent, the Panel therefore finds that Respondent’s primary intention for the confusingly similar disputed domain name was to create a likelihood of confusion between Complainant’s mark and the disputed domain name for commercial gain. Therefore, the Panel finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).
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 <aarpmedicareplans.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: November 26, 2008
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