national arbitration forum

 

DECISION

 

Baylor University v. Anthonny c/o Network Service

Claim Number: FA0906001265844

 

PARTIES

Complainant is Baylor University (“Complainant”), represented by Wendy C. Larson, of Pirkey Barber, LLP, Texas, USA.  Respondent is Anthonny c/o Network Service (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <cmebaylor.com>, registered with Onlinenic, Inc.

 

PANEL

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.

 

Honorable Paul A. Dorf (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 1, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 2, 2009.

 

On June 1, 2009, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <cmebaylor.com> domain name is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name.  Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, 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 June 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 29, 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@cmebaylor.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On July 1, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <cmebaylor.com> domain name is confusingly similar to Complainant’s BAYLOR mark.

 

2.      Respondent does not have any rights or legitimate interests in the <cmebaylor.com> domain name.

 

3.      Respondent registered and used the <cmebaylor.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Baylor University, is the oldest continuously operating institution of higher learning in Texas and is the largest Baptist university in the world.  Complainant has used its BAYLOR mark in connection with a wide range of goods and services, including medical-related services and education offered primarily through Complainant’s licensees, including Baylor College of Medicine.  Complainant’s Baylor College of Medicine is an accredited provider of Continuing Medical Education (“CME”) credits under the BAYLOR mark.  Complainant holds several registrations of its BAYLOR mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 1,465,910 issued November 17, 1987).

 

Respondent registered the <cmebaylor.com> domain name on June 29, 2008.  The disputed domain name resolves to a website that contains various hyperlinks to several websites of Complainant and hyperlinks to third-party websites that are unrelated to Complainant.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has sufficiently established rights in the BAYLOR mark under Policy ¶ 4(a)(i) because it holds several registrations of its mark with the USPTO.  See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).

 

Respondent’s <cmebaylor.com> domain name contains Complainant’s entire BAYLOR mark, adds the descriptive term “cme,” an acronym that describes Complainant’s services, and adds the generic top-level domain (“gTLD”) “.com.”  The Panel finds that Respondent’s <cmebaylor.com> domain name is confusingly similar to Complainant’s BAYLOR mark under Policy ¶ 4(a)(i) because none of these additions to Complainant’s mark sufficiently distinguish the disputed domain name from Complainant’s mark.  See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Nat. Arb. Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

In the beginning, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name.  The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii).  The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name.  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 <cmebaylor.com> domain name resolves to a website that displays various hyperlinks to Complainant’s websites and hyperlinks to several third-party websites that are unrelated to Complainant.  The Panel infers that Respondent receives click-through fees for these hyperlinks.  The Panel finds that Respondent’s use of the confusingly similar disputed domain name in conjunction with these hyperlinks to redirect Internet users to the aforementioned websites, presumably for a fee, 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)(i).  See WorldPay Ltd. v. Jones, FA 1169388 (Nat. Arb. Forum May 8, 2008) (finding the respondent was not using the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) because the respondent used the disputed domain name to link to complainant’s website); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant).

 

Moreover, Respondent is listed in the WHOIS information as “Anthonny c/o Network Service,” which does not indicate that Respondent is commonly known by the <cmebaylor.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 Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); 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.

 

Registration and Use in Bad Faith

 

As discussed above, Respondent is using the confusingly similar <cmebaylor.com> domain name to redirect Internet users to unrelated third-party websites through the use of the aforementioned hyperlinks, presumably for a fee.  The Panel finds that such use of the disputed domain name creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name.  Therefore, the Panel finds that Respondent’s actions constitute bad faith registration and use under Policy ¶ 4(b)(iv) because Respondent is commercially benefitting from Complainant’s goodwill that it has established in its BAYLOR mark.  See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (holding that the respondent was taking advantage of the confusing similarity between the <lilpunk.com> domain name and the complainant’s LIL PUNK mark by using the contested domain name to maintain a website with various links to third-party websites unrelated to Complainant, and that such use for the respondent’s own commercial gain demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <cmebaylor.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Honorable Paul A. Dorf (Ret.), Panelist

Dated: July 20, 2009

 

 

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