Allen Tate Co. Inc. v. Telecom Tech Corp.
Claim Number: FA0908001278777
Complainant is Allen Tate Co. Inc. (“Complainant”), represented by Elizabeth
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allentateco.com>, registered with Domaincannon.com LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 11, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 12, 2009.
On August 21, 2009, Domaincannon.com LLC confirmed by e-mail to the National Arbitration Forum that the <allentateco.com> domain name is registered with Domaincannon.com LLC and that Respondent is the current registrant of the name. Domaincannon.com LLC has verified that Respondent is bound by the Domaincannon.com LLC 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 August 21, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 10, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 15, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <allentateco.com> domain name is confusingly similar to Complainant’s ALLEN TATE mark.
2. Respondent does not have any rights or legitimate interests in the <allentateco.com> domain name.
3. Respondent registered and used the <allentateco.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allen Tate Co. Inc., has used its ALLEN TATE
mark continuously in commerce since 1957 in connection with its provision of
real estate brokerage, mortgage, insurance, and home warranty services in the
Respondent, Telecom Tech. Corp., registered the disputed <allentateco.com> domain name on May 27, 2008. The disputed domain name resolves to a website wherein in competitive click-through links for third parties in the real estate industry are shown.
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 has submitted evidence of its registration of the ALLEN TATE mark with the USPTO (Reg. No. 2,840,145 issued May 11, 2004). The Panel therefore finds that Complainant has sufficient rights in the mark pursuant to 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 Clear!Blue Holdings, L.L.C. v. NaviSite, Inc., FA 888071 (Nat. Arb. Forum Mar. 5, 2007) (“The Panel finds that Complainant has established trademark rights in the CLEAR BLUE marks through introduction of the certificates for its U.S. registration for those trademarks. The U.S. Trademark Act is clear that the certificate of registration on the Principal Register, as here, is prima facie evidence of the validity of the registered mark and the registrant's exclusive right to use the mark in commerce in on or in connection with the goods specified in the registration.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
domain name contains Complainant’s ALLEN TATE mark while omitting the space in
the mark, adding the generic top-level domain “.com,” and adding the generic
abbreviation “co,” which refers to Complainant’s company name “Allen Tate Co.
Inc.” The Panel finds that none of these
additions dispel the confusing similarity that exists between the disputed
domain name and the mark. Therefore, the
Panel finds that the disputed domain name is confusingly similar to the mark
under Policy ¶ 4(a)(i). See Jerry
Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant has set forth a prima facie case supporting its allegations, Respondent carries the burden to show that it does have rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Based on the evidence within the record, there is no indication that Respondent is commonly known by the disputed domain name. The WHOIS domain name registration information only lists the registrant of record as “Telecom Tech. Corp.” As such, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
The disputed domain name resolves to a website that displays links and advertisements for Complainant’s direct competitors in the real estate industry. The Panel presumes that Respondent seeks commercial referral fees through the display of these links, such that monetary gains accrue when Internet users follow the links to these third parties. The Panel finds that Respondent has not made 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). See ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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.
Respondent’s disputed domain name and resolving website is
used to display click-through advertisements that steer Internet users to
Complainant’s competitors. The Panel
finds that Respondent’s use of the disputed domain name was meant to disrupt
Complainant’s business for commercial gain.
Therefore, Respondent has engaged in bad faith registration and use
under Policy ¶ 4(b)(iii). See 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)); see
The Panel has already inferred that Respondent obtains
referral revenue when Internet users click on the advertised third-party
links. Respondent’s use of the
confusingly similar disputed domain name has created a likelihood of confusion
as to Complainant’s sponsorship or endorsement of the disputed domain name and
resolving website for commercial gain.
Thus, the Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iv).
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 <allentateco.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: September 29, 2009
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