ADC Telecommunications, Inc. v. Marcel Bell c/o AdC Technologies
Claim Number: FA0906001270602
Complainant is ADC
Telecommunications, Inc. (“Complainant”), represented by William Schultz, of Merchant & Gould,
P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <adctechnologies.net>, registered with Namesecure.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 Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 25, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 26, 2009.
On June 26, 2009, Namesecure.com confirmed by e-mail to the National Arbitration Forum that the <adctechnologies.net> domain name is registered with Namesecure.com and that Respondent is the current registrant of the name. Namesecure.com has verified that Respondent is bound by the Namesecure.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 June 29, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 20, 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@adctechnologies.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 24, 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 <adctechnologies.net> domain name is confusingly similar to Complainant’s ADC mark.
2. Respondent does not have any rights or legitimate interests in the <adctechnologies.net> domain name.
3. Respondent registered and used the <adctechnologies.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, ADC Telecommunications, Inc., is a worldwide leader in providing technology products such as global network infrastructure products and services that enable the profitable delivery of high-speed Internet, data, video, and phone services to consumers and businesses worldwide. Complainant began offering its products and services under its ADC mark since 1943. Complainant is the owner of multiple trademark registrations for the ADC mark, registered with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 1,021,919 issued October 7, 1995).
Respondent registered the <adctechnologies.net> domain name on May 29, 2003. The disputed domain name resolves to Respondent’s commercial website, which purports to market competing telecommunications 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 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 trademark registration with the USPTO for the ADC mark sufficiently conveys rights in the mark to Complainant for the purposes of Policy ¶ 4(a)(i). See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office); see also Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”).
Complainant contends that Respondent’s <adctechnologies.net> domain name is confusingly similar to Complainant’s ADC mark under Policy ¶ 4(a)(i). The disputed domain name incorporates Complainant’s entire mark with the addition of the descriptive term “technologies,” which describes Complainant’s business, and the affixation of the generic top-level domain “.net.” The Panel finds that these alterations fail to sufficiently distinguish Respondent’s <adctechnologies.net> domain name from Complainant’s mark. Thus, the Panel finds that Respondent’s <adctechnologies.net> domain name is confusingly similar to Complainant’s ADC mark under Policy ¶ 4(a)(i). See Marvell Int’l Ltd. v. Domain Admin, FA 1194790 (Nat. Arb. Forum July 10, 2008) (finding that the addition of the descriptive term “technology” does not negate a finding of confusing similarity between the respondent’s <marvelltechnology.com> domain name and the complainant’s MARVELL mark under Policy ¶ 4(a)(i)); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleged that Respondent does not have rights or
legitimate interests in the disputed domain name. Complainant is required to make a prima facie case in support of its
allegations. The burden then shifts to
Respondent to prove it possesses rights to or legitimate interests in the
disputed domain name. The Panel finds that
Complainant made a prima facie
case. Due to Respondent’s failure to
respond to these proceedings, the Panel may assume Respondent does not possess
rights to or legitimate interests in the disputed domain name. The Panel, however, will examine the record
to determine whether Respondent possesses rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c).
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 Talk City, Inc. v. Robertson,
D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the
Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with
the rules ‘as it considers appropriate.”).
The <adctechnologies.net>
domain name resolves to Respondent’s competing commercial website. The Panel finds that Respondent is using the
disputed domain name for its own commercial benefit by diverting Internet users
to a website that promotes Respondent’s competing telecommunications business
and thus, 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 pursuant to Policy ¶¶ 4(a)(i) or (iii), respectively.
See Or. State Bar v. A Special Day, Inc.,
FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal
services and sale of law-related books under Complainant's name is not a bona
fide offering of goods and services because Respondent is using a mark
confusingly similar to the Complainant's to sell competing goods.”); see also Ultimate Elecs., Inc. v.
Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the
respondent's “use of the domain name (and Complainant’s mark) to sell
products in competition with Complainant demonstrates neither a bona fide
offering of goods or services nor a legitimate noncommercial or fair use of the
name”).
Complainant contends that Respondent is not commonly known
by the <adctechnologies.net> domain name under Policy ¶ 4(c)(ii). The WHOIS
information lists the registrant as “Marcel Bell c/o AdC Technologies.” While the WHOIS information may indicate a
possible relationship to the disputed domain name, there is no evidence in the
record to corroborate this possible connection.
Respondent failed to counter Complainant’s allegations with any evidence
to show that it is commonly known by the disputed domain name. Thus, the Panel may infer that Respondent is
not commonly known by the <adctechnologies.net> domain name under
Policy ¶ 4(c)(ii).
Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s disputed domain name resolves to a competing commercial website that offers telecommunications services for sale. The Panel finds that this diversion of Internet users to Respondent’s confusingly similar domain name disrupts Complainant’s business and thus, constitutes bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”).
Respondent’s commercial website, resolving from the <adctechnologies.net> domain name, markets telecommunications services that are in direct competition with Complainant’s business. The Panel finds that Respondent is using the disputed domain name to generate revenue through its offering of competing services. Thus, the Panel finds that Respondent’s actions constitute bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iv). See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
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 <adctechnologies.net> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: August 6, 2009
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