Alltel Corporation v. Azra Khan
Claim Number: FA0209000124995
Complainant is Alltel Corporation, Little Rock, AR, USA (“Complainant”) represented by Michael K. Bydalek, of Kutak Rock LLP. Respondent is Azra Khan, Rawalpindi, PAKISTAN (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alltell.com>, registered with iHoldings.com.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on September 11, 2002; the Forum received a hard copy of the Complaint on September 16, 2002.
On September 13, 2002, iHoldings.com confirmed by e-mail to the Forum that the domain name <alltell.com> is registered with iHoldings.com and that Respondent is the current registrant of the name. iHoldings.com has verified that Respondent is bound by the iHoldings.com 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 September 16, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 7, 2002 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 email@example.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On October 25, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 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.
The <alltell.com> domain name is confusingly similar to Complainant’s ALLTEL mark.
Respondent has no rights or legitimate interests in the <alltell.com> domain name.
Respondent registered and used the <alltell.com> domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant has used the ALLTEL mark since 1983. To protect the value of the ALLTEL mark, Complainant registered the mark with the United States Patent and Trademark Office (“USPTO”) on February 26, 1985 (Reg. No. 1,322,561).
Complainant uses the ALLTEL mark to promote communication services in the United States and in association with information services offered in over fifty (50) countries worldwide. Complainant has developed a website at <alltel.com> to further enhance its ALLTEL communication-related services. The ALLTEL mark is an instrumental tool that establishes Complainant’s market presence and is vital to the company’s future success.
Respondent registered the <alltell.com> domain name on January 21, 2002. Respondent uses the domain name to direct Internet traffic to a website that offers wireless, broadband and basic telephone related services.
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 the 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.
Paragraph 4(a) of the Policy requires that the 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.
Identical and/or Confusingly Similar
Complainant has demonstrated its rights in the ALLTEL mark through proof of registration with the USPTO and continuous use of the mark in commerce since 1983.
Respondent’s <alltell.com> domain name is confusingly similar to Complainant’s ALLTEL mark because it merely adds an “l” on the end of the mark. Registering a misspelling of another entity’s mark does not overcome a confusingly similar claim because the domain name simply capitalizes on a common typographical error. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Nat’l Geographic Soc. v. Stoneybrook Inv., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to Complainant’s “National Geographic” mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant contends Respondent has no rights or legitimate interests in the <alltell.com> domain name, which effectively shifts the burden on Respondent to counter that claim. Respondent failed to come forward with a Response, and the Panel may presume that Respondent has no rights or legitimate interests in the domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).
Furthermore, Respondent’s failure to challenge Complainant’s allegations permits the Panel to accepts all allegations as true, and draw all reasonable inferences in favor of Complainant. See 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”); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
Respondent uses the <alltell.com> domain name to direct Internet traffic to a website that offers communication services similar to the services Complainant offers under the ALLTEL mark. Presumably, Respondent is engaged in this behavior to reap a profit from the diverted Internet traffic, since no evidence suggests Respondent has an independent interest the word “ALLTELL.” Hence, Respondent’s diversionary use of the domain name does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor does it represent a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that “[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the Complainant’s mark and for the same business”); see also MBS Computers Ltd. v. Workman, FA 96632 (Nat. Arb. Forum Mar. 16, 2001) (finding no rights or legitimate interests when Respondent is using a domain name identical to Complainant’s mark and is offering similar services).
Respondent’s failure to come forward and present a case for rights or legitimate interests in the domain name allows the Panel to presume, for want of evidence, that Respondent is not commonly known by the <alltell.com> domain name. The only evidence available, Respondent’s WHOIS page, evidencing Respondent’s identity specifies Respondent’s name as Azra Khan. Therefore, Respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent’s use of the <alltell.com> domain name to divert Internet traffic to a website with related content to Complainant’s ALLTEL services is apparently done to profit off of the ALLTEL mark’s established goodwill. Since the services offered at the resulting website are substantially similar to Complainant’s communication services, an Internet user is highly likely to become confused as to Complainant’s affiliation. Confusion is even more likely because the domain name merely takes advantage of a potential typographical error. The likely use of the domain name, therefore, stems from an Internet user searching for Complainant’s ALLTEL related products. Respondent’s commercial opportunistic use of the domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks); see also Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]hile an intent to confuse consumers is not required for a finding of trademark infringement, intent to deceive is strong evidence of a likelihood of confusion")
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 the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <alltell.com> be transferred from Respondent to Complainant.
Honorable Paul A. Dorf (Ret), Panelist
Dated: November 4, 2002
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