Board
of Regents, The
Claim Number: FA0902001247965
Complainant is Board
of Regents, The
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <universityoftexascoop.com>, registered with Backslap 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 February 17, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 18, 2009.
On February 17, 2009, Backslap Domains, Inc confirmed by e-mail to the National Arbitration Forum that the <universityoftexascoop.com> domain name is registered with Backslap Domains, Inc and that Respondent is the current registrant of the names. Backslap Domains, Inc has verified that Respondent is bound by the Backslap Domains, 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 February 27, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 19, 2009 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@universityoftexascoop.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 25, 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
<universityoftexascoop.com> domain name is confusingly similar to
Complainant’s
2. Respondent does not have any rights or legitimate interests in the <universityoftexascoop.com> domain name.
3. Respondent registered and used the <universityoftexascoop.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Board of Regents, The University of Texas
System, is a
Respondent registered the <universityoftexascoop.com> domain name on January 27, 2005. The disputed domain name resolves to a parked web page with links for websites that purport to lead to Complainant, but in reality lead to third-parties unaffiliated with Complainant.
Respondent has been the respondent in other UDRP proceedings in which the disputed domain names have been transferred from Respondent to the respective complainants in those cases. See Doug Mockett & Co., Inc. v. Gila, FA 1219431 (Nat. Arb. Forum Oct. 3, 2008); see also Transamerica Corp. v. Gila, FA 1238257 (Nat. Arb. Forum Jan. 26, 2009).
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
Respondent’s <universityoftexascoop.com> domain
name contains Complainant’s entire mark, removes the spaces, adds the generic
top-level domain “.com,” and adds the descriptive colloquial term “co-op,”
without the hyphen. The Panel finds the
addition of a top-level domain and removal of spaces from a
mark are irrelevant. See Isleworth Land Co. v.
Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t
is a well established principle that generic top-level domains are irrelevant
when conducting a Policy ¶ 4(a)(i) analysis.”); see also Bond & Co. Jewelers, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. When Complainant sets forth a prima facie case supporting its allegations as it has in the current case, the burden shifts to Respondent to prove that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
There is no evidence in the record that allows for the conclusion that Respondent is or ever was commonly known by the disputed domain name. The WHOIS information lists the registrant of record as “Miguel Gila.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent is using the disputed domain name to resolve to a website that displays commercial links purporting to lead to Complainant, but in reality these links lead to unrelated third parties. The Panel presumes Respondent profits from its use of the disputed domain name via the receipt of referral fees. The Panel finds that this is 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). See 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)); see also 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).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent in other UDRP proceedings
in which the disputed domain names have been transferred from Respondent to the
respective complainants in those cases. See Doug Mockett & Co., Inc. v. Gila, FA
1219431 (Nat. Arb. Forum Oct. 3, 2008); see also Transamerica Corp. v.
Gila, FA 1238257 (Nat. Arb. Forum Jan. 26, 2009). The Panel finds that Respondent has engaged
in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Nat’l Abortion Fed’n v. Dom 4
Sale, Inc., FA 170643 (Nat. Arb. Forum
Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the
domain name prevented the complainant from reflecting its mark in a domain name
and the respondent had several adverse decisions against it in previous UDRP
proceedings, which established a pattern of cybersquatting); see also Sport Supply Group,
Inc. v. Lang, D2004-0829 (WIPO Dec. 10, 2004)(“[Respondent] registered the
<usgames.com> domain name in order to prevent [Complainant] from
reflecting its U.S. GAMES Mark in a corresponding domain name [pursuant to
Policy ¶ 4(b)(ii)]. The pattern of such
conduct is established, inter alia, by the public decisions of two different
UDRP proceedings [against] Respondent.”).
It is very likely that Internet users seeking Complainant
could come across the disputed domain name.
These Internet users would then be confused through their diversion to
Respondent’s website, as it provides links purporting to lead to Complainant,
but in reality create another diversion to unrelated third parties. Respondent has therefore created a likelihood
of confusion as to Complainant’s endorsement and affiliation with the disputed
domain name and corresponding website.
The Panel finds Respondent has engaged in bad faith registration and use
under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA
697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of
a domain name confusingly similar to a complainant’s mark to direct Internet
traffic to a commercial “links page” in order to profit from click-through fees
or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also G.D. Searle & Co.
v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002)
(finding that the respondent registered and used the domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly
similar domain name to attract Internet users to its commercial website).
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 <universityoftexascoop.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: April 7, 2009
National
Arbitration Forum