Claim Number: FA0812001240492
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <baylorgroup.com>, registered with Wild West Domains, 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 30, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <baylorgroup.com> domain name is confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorgroup.com> domain name.
3. Respondent registered and used the <baylorgroup.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <baylorgroup.com>
domain name 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
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’s registration of the BAYLOR mark with the USPTO
establishes its rights to the mark pursuant to Policy ¶ 4(a)(i). See
Miller Brewing
The <baylorgroup.com>
domain name is composed of Complainant’s BAYLOR mark, the generic word “group,”
and the generic top-level domain (gTLD) “.com.”
It is well established that a gTLD is irrelevant to an analysis under
Policy ¶ 4(a)(i).
See Nev. State
Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. If the Panel finds
that Complainant’s allegations establish such a prima facie case, the
burden shifts to Respondent to show that it does indeed have rights or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). Since no response was
submitted in this case, the Panel may presume that Respondent has no rights or
legitimate interests in the disputed domain name. The Panel finds that Complainant’s
allegations are sufficient to establish a prima
facie case that Respondent has no rights or legitimate interests in the <baylorgroup.com> domain name
pursuant to Policy ¶ 4(a)(ii). However,
the Panel will still examine the record in consideration of the factors listed
in Policy ¶ 4(c). See Domtar, Inc. v.
Theriault.,
FA 1089426 (Nat. Arb. Forum
Under Policy ¶ 4(c)(ii), if Respondent
demonstrates it is commonly known by the disputed domain name, then it will
have demonstrated rights or legitimate interests in said name. The Panel finds no evidence in the record
suggesting that Respondent is commonly known by the <baylorgroup.com> domain name. Complainant asserts that Respondent has no
license or agreement with Complainant authorizing Respondent to use the BAYLOR
mark, and the WHOIS information identifies Respondent as “Carlos Gomez.”
Thus, Respondent has not established rights or legitimate interests in
the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent may also prove it has rights or legitimate
interests in the disputed domain name by showing it is being used in connection
with 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 disputed domain name is being used to
direct Internet users to a parking website with a list of links to third-party
websites. Using a domain name that is
confusingly similar to Complainant’s mark to direct Internet users to a list of
links is neither a bona fide offering
of goods or services nor a legitimate noncommercial or fair use. Therefore, the Panel finds Respondent does
not have any rights or legitimate interests in the disputed domain name
pursuant to Policy ¶¶ 4(c)(i) or (iii). See eBay Inc. v. Hong, D2000-1633
(WIPO
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <baylorgroup.com>
domain name to resolve to a website that contains links for third-party
websites. Some of these links directly
compete with Complainant. The Panel
finds Respondent is using the <baylorgroup.com>
domain name to divert Internet users to Complainant’s competitors. This is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii). See
Puckett, Individually v. Miller, D2000-0297 (WIPO
The website that resolves from the <baylorgroup.com> domain name
displays advertisements and links to sites that are both related and unrelated
to Complainant’s BAYLOR mark. The Panel
infers that Respondent receives pay-per-click fees for these links and
advertisements. Since the disputed
domain name is confusingly similar to Complainant’s mark, Internet users are
likely to become confused as to Complainant’s affiliation or sponsorship of the
resolving website. Respondent is seeking
to profit from this confusion by hosting pay-per-click advertising on the
resolving website. The Panel finds this
is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat.
Arb. Forum
The Panel finds 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 <baylorgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: February 13, 2009
National
Arbitration Forum