Ameriprise Financial, Inc. v. Maria Varela
Claim Number: FA0904001259673
Complainant is Ameriprise Financial, Inc. (“Complainant”), represented by David
G. Barker, of SNELL & WILMER L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <seligmanretirment.com>, registered with Backslap Domains, Inc.
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 Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 27, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 4, 2009.
On April 28, 2009, Backslap Domains, Inc confirmed by e-mail to the National Arbitration Forum that the <seligmanretirment.com> domain name is registered with Backslap Domains, Inc and that Respondent is the current registrant of the name. 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 May 12, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 1, 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@seligmanretirment.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 8, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 <seligmanretirment.com> domain name is confusingly similar to Complainant’s SELIGMAN mark.
2. Respondent does not have any rights or legitimate interests in the <seligmanretirment.com> domain name.
3. Respondent registered and used the <seligmanretirment.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ameriprise
Financial, Inc., is a leader in the financial services industry and has used
the SELIGMAN mark since 1864 in connection with various financial services. Complainant holds a registration of the mark with
the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,366,135
issued July 11, 2000).
Respondent registered the <seligmanretirment.com> domain name on October 3, 2004. The disputed domain name resolves to a website that offers various financial products and services from third-parties through the use of hyperlinks, some of which directly compete with Complainant.
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 SELIGMAN mark, issued by the USPTO, is sufficient to establish rights in that mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); 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.").
Respondent’s <seligmanretirment.com> domain name contains Complainant’s entire mark, adds the term “retirment,” a common misspelling of the term “retirement,” which describes a type of service that Complainant provides, and merely adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that none of these additions to Complainant’s mark sufficiently distinguish the disputed domain name from Complainant’s mark. Therefore, the Panel finds that Respondent’s <seligmanretirment.com> domain name is confusingly similar to Complainant’s SELIGMAN mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
First, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). See 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.”); see also 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).”).
Respondent’s <seligmanretirment.com>
domain name resolves to a
website that offers various financial products and services from third-parties
through the use of hyperlinks, some of which directly compete with Complainant. The
Panel infers that Respondent receives click-through fees for these
hyperlinks. Therefore, the Panel finds
that Respondent’s use of the confusingly similar disputed domain name in conjunction
with these hyperlinks diverts Internet users to competing websites for
commercial gain, and thus is not a bona
fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Skyhawke
Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18,
2007) (“Respondent is using the <skycaddy.com>
domain name to display a list of hyperlinks, some of which advertise
Complainant and its competitors’ products.
The Panel finds that this use of the disputed domain name does not
constitute 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 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)).
Furthermore, Respondent is listed in the WHOIS information
as “Maria Varela,” which does not
indicate that Respondent is commonly known by the <seligmanretirment.com> domain name. Respondent has not
offered any evidence to indicate otherwise.
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 M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not
commonly known by the <cigaraficionada.com> domain name under Policy ¶
4(c)(ii) based on the WHOIS information and other evidence in the record).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <seligmanretirment.com>
domain name resolves to a
website that offers various financial products and services from third-parties
through the use of hyperlinks, some of which directly compete with Complainant.
Accordingly, the Panel finds that this use of the disputed domain name disrupts
Complainant’s business and constitutes bad faith registration and use under Policy
¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb.
Forum July 24, 2006) (finding that the respondent engaged in bad faith
registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed
domain names to operate a commercial search engine with links to the products
of the complainant and to complainant’s competitors, as well as by diverting
Internet users to several other domain names); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes
that by redirecting Internet users seeking information on Complainant’s
educational institution to competing websites, Respondent has engaged in bad
faith registration and use pursuant to Policy ¶
4(b)(iii).”).
Moreover, Respondent is
presumably collecting fees from the aforementioned hyperlinks that are
displayed on the website resolving from the Respondent’s confusingly similar <seligmanretirment.com>
domain name. The Panel finds that Respondent’s use of the
disputed domain name creates a likelihood of confusion as to Complainant’s
affiliation with the disputed domain name and that Respondent is commercially
gaining from this confusing similarity through the presumed click-through
fees. Therefore, the Panel finds that Respondent’s
actions constitute bad faith registration and use under Policy ¶ 4(b)(iv). See
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 <seligmanretirment.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: June 23, 2009
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