Analysts International Corporation v. Mohammed Zahed
Claim Number: FA0907001272687
Complainant is Analysts International Corporation (“Complainant”), represented by Linda
M. Byrne, of Crawford Maunu PLLC,
REGISTRAR
The domain name at issue is <analystsinternational.com>, registered with Domaindiscover.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <analystsinternational.com> domain name is identical similar to Complainant’s ANALYSTS INTERNATIONAL mark.
2. Respondent does not have any rights or legitimate interests in the <analystsinternational.com> domain name.
3. Respondent registered and used the <analystsinternational.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Analysts
International Corporation, provides information technology consulting
services. Complainant holds several
trademark registrations with the United States Patent and Trademark Office
(“USPTO”) for its ANALYSTS INTERNATIONAL mark, including Registration
Number 2,354,918, which was issued
Respondent acquired the <analystsinternational.com>
domain name on
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.
Complainant’s registration of its ANALYSTS INTERNATIONAL
mark with the USPTO is sufficient to establish Complainant’s rights in the mark
pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The <analystsinternational.com>
domain name differs from Complainant’s ANALYSTS INTERNATIONAL mark by removing
the space between the two words of the mark and adding the generic top-level
domain (“gTLD”) “.com.” The Panel finds
that these changes are irrelevant to an analysis under Policy ¶ 4(a)(i) and further
finds that the disputed domain name is identical to Complainant’s mark pursuant
to Policy ¶ 4(a)(i). See Croatia Airlines v. Kwen Kijong,
AF-0302 (eResolution
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima facie case that
Respondent has no rights or legitimate interests in the disputed domain name. If
the Panel finds that Complainant’s allegations establish such a prima facie case,
the burden shifts to Respondent to show that it does indeed have rights or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). The Panel finds
that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no
rights or legitimate interests in the <analystsinternational.com>
domain name pursuant to Policy ¶ 4(a)(ii).
Because no response was
submitted in this case, the Panel may presume that Respondent has no rights or
legitimate interests in the disputed domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault.,
FA 1089426 (Nat. Arb. Forum
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the disputed domain name. Complainant asserts that Respondent has no
license or agreement with Complainant authorizing Respondent to use the ANALYSTS
INTERNATIONAL mark, and the WHOIS information identifies Respondent as “Mohammed Zahed.” Thus, the Panel finds that Respondent has not
established rights or legitimate interests in the <analystsinternational.com> domain name under Policy ¶
4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent’s <analystsinternational.com>
domain name resolves to a website offering IT consulting services in direct
competition with Complainant. The Panel
finds that this use is neither a bona
fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <analystsinternational.com>
domain name, which is identical to Complainant’s ANALYSTS INTERNATIONAL mark,
resolves to a website that directly competes with Complainant’s business. The Panel finds that this use is evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston,
FA 593977 (Nat. Arb. Forum
Under Policy ¶ 4(b)(iv), a respondent acts in bad faith when
it uses an identical domain name to attract Internet users for commercial
gain. In this case, Respondent is using
the <analystsinternational.com>
domain name to attract users to a competing IT consulting services
website. The Panel finds that Respondent
has created a likelihood of confusion with Complainant’s mark and that
Respondent has sought to profit from this confusion through a commercial
website. The Panel finds Respondent
registered and used the disputed domain name in bad faith pursuant to Policy ¶
4(b)(iv). See Computerized Sec. Sys.,
Inc. v. Hu, FA 157321 (Nat. Arb. Forum
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 <analystsinternational.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: August 21, 2009
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