The American Automobile Association, Inc. v. Gu Bei
Claim Number: FA0907001273425
Complainant is The
American Automobile Association, Inc. (“Complainant”), represented by Hope Hamilton, of Covington &
Burling LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <aaavacation.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.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 July 13, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 14, 2009.
On July 14, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <aaavacation.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.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 July 17, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 6, 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@aaavacation.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 12, 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 <aaavacation.com> domain name is confusingly similar to Complainant’s AAA VACATIONS mark.
2. Respondent does not have any rights or legitimate interests in the <aaavacation.com> domain name.
3. Respondent registered and used the <aaavacation.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The American Automobile Association, Inc., offers a variety of goods and services in the automotive, financial, and insurance markets. Complainant has registered variations of its AAA mark, including the AAA VACATIONS mark, with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,120,266 issued December 9, 1997). Complainant uses the AAA VACATIONS mark in connection with travel tour and vacation arrangements.
Respondent registered the disputed domain name on September 6, 2008. The disputed domain name resolves to a website that displays pay-per-click advertisements for various third parties, including Complainant’s competitors.
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 its AAA
VACATIONS mark with the USPTO adequately demonstrates Complainant’s rights in
the mark under Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v.
Respondent’s <aaavacation.com> domain name
includes Complainant’s AAA VACATIONS mark with the following changes: (1) the
space between the words of the mark has been removed; (2) the generic top-level
domain “.com” has been added; and (3) the letter “s” has been removed from the
“VACATIONS” portion of the mark. The
Panel will follow previous UDRP precedent in finding that the removal of a
space and the addition of a top-level domain is
irrelevant under the Policy. See Bond & Co. Jewelers, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
The Panel notes that the WHOIS information lists Respondent
as “Gu Bei,” and
that Respondent is not permitted or authorized to use Complainant’s mark. Complainant asserts, and the Panel so finds,
that Respondent is not nor has ever been commonly known by the disputed domain
name under Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb.
Forum Feb. 5, 2001) (finding no rights or legitimate interests because the
respondent is not commonly known by the disputed domain name or using the
domain name in connection with a legitimate or fair use); see also Ian
Schrager Hotels, L.L.C. v. Taylor, FA
173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable
evidence to support the assertion that a respondent is commonly known by a
domain name, the assertion must be rejected).
Respondent’s disputed domain name resolves to a website that promotes Complainant’s competitors via click-through advertising and links. The Panel presumes Respondent has conducted this venture for the receipt of referral fees. Therefore, the Panel finds that Respondent has failed to create 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Due to the presence of competitive click-through advertisements on the resolving website, the Panel finds that Respondent has disrupted Complainant’s business, which 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 Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Since Respondent presumably receives referral fees for
displaying the click-through links on the resolving website, the Panel finds
that Respondent is commercially benefiting from its use of the disputed domain
name. As such, the Panel finds that
Respondent has registered and used the disputed domain name in bad faith under
Policy ¶ 4(b)(iv) because Respondent has created a likelihood of confusion as
to Complainant’s endorsement of the disputed domain name and website. See Zee TV USA, Inc. v.
Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding
that the respondent engaged in bad faith registration and use by using a domain
name that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
complainant); see also Asbury Auto. Group, Inc. v.
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 <aaavacation.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: August 26, 2009
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