Advanta Corp. v. Caritas Health Services
Claim Number: FA0901001243369
Complainant is Advanta
Corp. (“Complainant”), represented by Rachel
E. Branson, of Schnader Harrison Segal & Lewis LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <advantahha.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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On FEBRUARY 24, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 <advantahha.com> domain name is confusingly similar to Complainant’s ADVANTA mark.
2. Respondent does not have any rights or legitimate interests in the <advantahha.com> domain name.
3. Respondent registered and used the <advantahha.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Advanta Corp., has registered the ADVANTA mark with the United States Patent and Trademark Office (“USPTO”) in connection with Complainant’s banking and insurance business (Reg. No. 2,732,354 issued July 1, 2003).
Respondent registered the <advantahha.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 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, by registering its ADVANTA
mark with the USPTO, has established rights in the ADVANTA mark pursuant to
Policy ¶ 4(a)(i).
The <advantahha.com> domain name includes
Complainant’s ADVANTA mark, followed by the letters “hha” and the generic
top-level domain (gTLD) “.com.” These
changes are insufficient to dispel the confusing similarity that results from
using Complainant’s entire mark.
Therefore, the Panel finds that the <advantahha.com> domain
name is confusingly similar to Complainant’s ADVANTA mark pursuant to Policy ¶
4(a)(i). See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb.
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). 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 <advantahha.com> domain name pursuant to Policy ¶
4(a)(ii). 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. 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 <advantahha.com> domain name. Complainant asserts that Respondent has no
license or agreement with Complainant authorizing Respondent to use the ADVANTA
mark, and the WHOIS information identifies Respondent as “Caritas Health
Services.” 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 has not made any use of the disputed domain name
other than to display a “coming soon” notice.
Since Respondent has failed to put the disputed domain name to any
active use, the Panel finds Respondent is not using the disputed domain name in
connection with a bona fide offering
of goods or services or a legitimate noncommercial or fair use. Therefore, Respondent does not have any
rights or legitimate interests pursuant to Policy ¶¶ 4(c)(i) or (iii). Broadcom Corp. v. Wirth, FA 102713
(Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel chooses to consider the totality of the
circumstances when conducting its Policy ¶ 4(a)(iii) analysis. See Do The Hustle, LLC v. Tropic Web,
Respondent has failed to use the <advantahha.com>
domain name. The Panel finds that
Respondent’s failure to use the disputed domain name constitutes bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See
Caravan Club v. Mrgsale, FA 95314 (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 <advantahha.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
March 10, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum