Claim Number: FA0907001274424
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <bayloryellowpages.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On July 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 12, 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@bayloryellowpages.com by e-mail.
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 <bayloryellowpages.com> domain name is confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <bayloryellowpages.com> domain name.
3. Respondent registered and used the <bayloryellowpages.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <bayloryellowpages.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.
The Panel is satisfied with Complainant’s showing of rights
in the BAYLOR mark under Policy ¶ 4(a)(i) through its several registrations of
the mark held with the USPTO (i.e., Reg. No.
1,465,910 issued November 17, 1987). See Reebok Int’l Ltd. v.
Respondent’s <bayloryellowpages.com> domain name
contains Complainant’s entire BAYLOR mark, merely adds the descriptive phrase
“yellow pages,” which describes a service provided by Complainant, and 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 the <bayloryellowpages.com> domain name
is confusingly similar to Complainant’s BAYLOR mark under Policy ¶
4(a)(i). See Oki Data Ams., Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
At the outset, 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 Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”).
Respondent is listed in the WHOIS information as “Earth Yellow Pages,” which does not indicate
that Respondent is commonly known by the <bayloryellowpages.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 Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding
that the respondent was not commonly known by the <shoredurometer.com>
and <shoredurometers.com> domain names because the WHOIS information
listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the
registrant of the disputed domain names and there was no other evidence in the
record to suggest that the respondent was commonly known by the domain names in
dispute); see also Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum
Moreover, Respondent’s confusingly similar <bayloryellowpages.com> domain name resolves to a website that
features several hyperlinks to unrelated third-party websites. The Panel presumes that Respondent receives
click-through fees for these hyperlinks.
Therefore, the Panel finds that Respondent’s use of the disputed domain
name 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). See Constellation Wines
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent’s
confusingly similar <bayloryellowpages.com>
domain name resolves to a website that
displays the aforementioned hyperlinks, for which, presumably, Respondent receives
click-through fees. The Panel finds that
this use of the disputed domain name by Respondent creates a likelihood of
confusion as to Complainant’s affiliation with the disputed domain name. Accordingly, the Panel finds that
Respondent’s conduct constitutes bad faith registration and use under Policy ¶
4(b)(iv). See Ass’n of Junior
Leagues Int’l Inc. v. This Domain Name My Be For
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 <bayloryellowpages.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 31, 2009
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