Claim Number: FA0911001292687
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <bayloruniversity.com>, registered with Masterofmydomains.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically November 3, 2009; the National Arbitration Forum received a hard copy of the Complaint November 4, 2009.
On November 10, 2009, Masterofmydomains confirmed by e-mail to the National Arbitration Forum that the <bayloruniversity.com> domain name is registered with Masterofmydomains and that Respondent is the current registrant of the name. Masterofmydomains verified that Respondent is bound by the Masterofmydomains registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On November 12, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 2, 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@bayloruniversity.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 8, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The
domain name that Respondent registered, <bayloruniversity.com>, is
identical to Complainant’s
2. Respondent has no rights to or legitimate interests in the <bayloruniversity.com> domain name.
3. Respondent registered and used the <bayloruniversity.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <bayloruniversity.com>
domain name July 17, 2009, more than a century and a half after
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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.
Previous panels have found that a complainant establishes
rights in a mark through a registration of the mark with a governmental
trademark authority. Therefore, the
Panel finds that Complainant established rights under Policy ¶ 4(a)(i) in the
Complainant claims that Respondent’s disputed <bayloruniversity.com>
domain name is identical to Complainant’s
The Panel finds Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant alleged that Respondent does not have any rights or legitimate interests in the <bayloruniversity.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights to or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant made a sufficient prima facie case. Given Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel examines the record to determine whether evidence in the record suggests that Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c) before making a determination. 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 Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”).
The WHOIS information, provided by Complainant, does not provide a connection between the domain name registrant information and the disputed domain name. Respondent did not offer evidence either contradicting this information or suggesting that Respondent is commonly known by the <bayloruniversity.com> domain name. No other evidence on the record shows that Respondent is commonly known by the disputed domain name.
Complainant further asserts that Respondent is not
authorized to use the
Respondent’s <bayloruniversity.com> domain name resolves to a website featuring hyperlinks to third-parties unrelated to Complainant and Complainant’s educational services. Respondent likely receives click-through fees from the third-party hyperlinks. The Panel finds that Respondent’s use of an identical domain name for this use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant).
Respondent attempted to sell the <bayloruniversity.com> domain name for $2,909 to Complainant. The $2,909 amount is likely to be more than Respondent’s out-of-pocket costs for the registration of the disputed domain name. The Panel finds that Respondent’s attempt to sell the disputed domain name is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Respondent offered to sell the <bayloruniversity.com> domain name to Complainant for $2,909. The Panel is permitted to make an inference that this amount is greater than Respondent’s out-of-pocket costs for the registration of the disputed domain name. The Panel finds that Respondent’s registration and use of the disputed domain name for the purpose of selling it for more than Respondent’s out-of-pocket costs constitutes bad faith registration and use under Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name); see also Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)).
Respondent uses the <bayloruniversity.com>
domain name to resolve to a website featuring third-party hyperlinks unrelated
to Complainant and Complainant’s educational services. Under such use, the Panel is permitted to
make an inference that Respondent receives click-through fees from the
aforementioned hyperlinks. Internet
users, interested in Complainant and Complainant’s educational services, may
become confused as to Complainant’s affiliation with or sponsorship of the
disputed domain name or resolving website.
Respondent attempts to profit from this confusion. The Panel finds that Respondent’s use of the
identical disputed domain name constitutes bad faith registration and use under
Policy ¶ 4(b)(iv).
See T-Mobile
USA, Inc. v. utahhealth, FA
697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of
a domain name confusingly similar to a complainant’s mark to direct Internet
traffic to a commercial “links page” in order to profit from click-through fees
or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also The Ass’n of Junior Leagues
Int’l Inc. v. This Domain Name My Be For
The Panel finds that Complainant satisfied the elements of ICANN 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 <bayloruniversity.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: December 23, 2009.
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