Claim Number: FA0911001295319
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <bayloredu.com>, registered with Dynadot, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 19, 2009.
On November 19, 2009, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <bayloredu.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 November 20, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 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 postmaster@bayloredu.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 17, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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 <bayloredu.com> domain name is confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <bayloredu.com> domain name.
3. Respondent registered and used the <bayloredu.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Rodrique Calasbo, registered the disputed domain name on July 17, 2009. The disputed domain name resolves to a website which contains hyperlinks to third-party colleges in competition with Complainant. Respondent has offered to sell the disputed domain name to Complainant for $453.
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 registered the BAYLOR mark (e.g., Reg.
No. 1,465,910 issued Novemer 17, 1987) with the USPTO. The Panel finds this registration establishes
Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See
Miller Brewing
The <bayloredu.com>
domain name consists of Complainant’s BAYLOR mark, the abbreviation for the
descriptive term education “edu,” and
the generic top-level domain (gTLD) “.com.”
The Panel finds neither the addition of a gTLD, nor the addition of a
descriptive abbreviation sufficiently distinguishes the disputed domain name
from Complainant’s mark. Thus, the
Panel finds the <bayloredu.com>
domain name is confusingly similar to Complainant’s BAYLOR mark pursuant to
Policy ¶ 4(a)(i). See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063
(Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant must
first establish a prima facie case that Respondent lacks rights or
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). 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 Complainant’s allegations are sufficient to establish a prima facie case and Respondent has failed
to submit a response to these proceedings, allowing the presumption that
Respondent has not acquired 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 <bayloredu.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the BAYLOR mark, and the WHOIS information identifies Respondent as “Rodrique Calasbo.” Therefore, the Panel finds Respondent has not
established it is commonly known by the disputed domain name under Policy ¶
4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
The disputed domain name resolves to a website offering
links to third-party websites that compete with Complainant’s
higher-educational services. Using a
domain name that is confusingly similar to Complainant’s mark to direct
Internet users competitive links is not 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 ALPITOUR S.p.A. v. Albloushi, FA
888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention
of rights and legitimate interests in the <bravoclub.com> domain name
because the respondent was merely using the domain name to operate a website
containing links to various competing commercial websites, which the panel did
not find to be a use in connection with 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 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).”).
Respondent has offered to sell the disputed domain name to Complainant for $453, which is likely more than Respondent’s out-of-pocket registration costs for 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 under Policy ¶ 4(a)(ii). 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent offered to
sell the disputed domain name to Complainant for $453, an amount in
excess of Respondent’s presumed out-of-pocket registration costs. 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 Little Six, Inc. v. Domain For
Respondent is using the disputed domain name to resolve to a
website that contains links for third-party websites. Some of these links directly compete with
Complainant which the Panel finds constitutes disruption. This is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO
The website that resolves from the disputed domain name
displays advertisements and links to sites that compete with Complainant’s
offering of higher-educational services.
The Panel presumes Respondent receives pay-per-click fees for these
links. Since the disputed domain name is
confusingly similar to Complainant’s mark, Internet users are likely to become
confused as to Complainant’s affiliation with the resolving website and
competitive links. The Panel finds this
is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iv). See Am. Univ. v.
Cook, FA 208629 (Nat. Arb. Forum
The Panel finds 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 <bayloredu.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: December 31, 2009
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