Board of Regents, The University of Texas System v. Domain Administrator q@q24.com
Claim Number: FA0912001299749
Complainant is Board of Regents, The
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <universityoftexashouston.com> and <universityoftexasgalveston.com>,
registered with Moniker.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 21, 2009.
On December 24, 2009, Moniker confirmed by e-mail to the National Arbitration Forum that the <universityoftexashouston.com> and <universityoftexasgalveston.com> domain names are registered with Moniker and that Respondent is the current registrant of the names. Moniker has verified that Respondent is bound by the Moniker 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 December 30, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 19, 2010 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@universityoftexashouston.com and postmaster@universityoftexasgalveston.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 28, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<universityoftexashouston.com> and <universityoftexasgalveston.com>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <universityoftexashouston.com> and <universityoftexasgalveston.com> domain names.
3. Respondent registered and used the <universityoftexashouston.com> and <universityoftexasgalveston.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Board of Regents, The University of Texas
System, operate institutions of higher learning in the state of
Respondent registered the disputed domain names on or after October 3, 2005. Respondent’s disputed domain names resolve to websites displaying third-party websites offering higher education services in competition with Complainant.
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 owns a trademark registration for the
Complainant argues that
Respondent’s <universityoftexashouston.com> and <universityoftexasgalveston.com>
domain names are confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to 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 names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant asserts that Respondent is neither commonly
known by the disputed domain names, nor licensed to register domain names using
the
The disputed domain names resolve to websites that features links to websites offering the products and services of Complainant’s competitors in the higher education field. The Panel finds that the use of the disputed domain names to promote Complainant’s competitors is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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 also Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent intended to disrupt
Complainant’s business and take advantage of Complainant’s goodwill surrounding
its mark by displaying third-party links to Complainant’s competitors in the
higher education field. The Panel
therefore finds that Respondent engaged in bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole,
FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the
domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is
operating on behalf of a competitor of Complainant . . .”); see also
Complainant contends that Respondent is gaining commercially
through this diversion, through click-through fees that Respondent is
presumably receiving from its use of the disputed domain names. The Panel finds
that Respondent is intentionally using the disputed domain names for commercial gain
through a likelihood of confusion with Complainant’s mark, and so, pursuant to
Policy ¶ 4(b)(iv), the Panel finds that this use for commercial gain also
constitutes evidence of registration and use in bad faith. 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 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 <universityoftexashouston.com> and <universityoftexasgalveston.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: February 11, 2010
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