Bridgepoint Education, Inc. and Ashford University LLC v. Speedy Web
Claim Number: FA1001001302561
Complainant is Bridgepoint
Education, Inc. and Ashford
University LLC (“Complainant”), represented by Joseph H.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ashforduniversity.net>, registered with Directnic, Ltd.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 12, 2010. With its Complaint, Complainant also chose to proceed entirely electronically under the new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) by submitted an “opt-in” form available on the Forum’s website.
On January 12, 2010, Directnic, Ltd confirmed by e-mail to the National Arbitration Forum that the <ashforduniversity.net> domain name is registered with Directnic, Ltd and that Respondent is the current registrant of the name. Directnic, Ltd has verified that Respondent is bound by the Directnic, Ltd 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 January 15, 2010, a Written Notice of the Complaint, setting a deadline of February 4, 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@ashforduniversity.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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:
Complainant offers post-secondary educational courses both online and through traditional campuses.
Complainant uses the
The
Complainant holds trademark registrations with the United
States Patent and Trademark Office ("USPTO") for its
Complainant owns the domain name <ashford.edu>, which is used to host Complainant’s homepage and market Complainant’s educational services.
Complainant has never authorized Respondent to use the
Respondent registered the <ashforduniversity.net> domain name on February 13, 2003.
The disputed domain name resolves to a parked website featuring a search engine hyperlink directory that includes links to Complainant’s competitors in the educational services business.
Respondent’s <ashforduniversity.net> domain
name is identical to Complainant’s
Respondent does not have any rights to or legitimate interests in the domain name <ashforduniversity.net>.
Respondent registered and used the <ashforduniversity.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Respondent registered the <ashforduniversity.net>
domain name prior to Complainant’s trademark registration with the USPTO. This is not fatal to Complainant’s claim
because governmental trademark registration is not necessary to establish
rights under Policy ¶ 4(a)(i). Previous panels have determined that a mark
registration is not required so long as a complainant can establish common law
rights through proof of sufficient secondary meaning associated with a
mark. See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13,
2000) (finding that the Policy does not require that a complainant's mark be
registered with a government authority for such rights to exist); see also Artistic Pursuit LLC v.
calcuttawebdevelopers.com, FA 894477
(Nat. Arb. Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require
a trademark registration if a complainant can establish common law rights in
its mark).
The record in this proceeding reveals no dispute as to Complainant’s
contention that its predecessor enterprise first utilized the
Complainant asserts that Respondent’s <ashforduniversity.net>
domain name is identical to Complainant’s
Therefore, the Panel finds that Respondent’s <ashforduniversity.net>
domain name is identical to Complainant’s
Complainant alleges that Respondent lacks rights to and legitimate interests in the <ashforduniversity.net> domain name. When a complainant makes out a prima facie case in support of its allegations, the burden shifts to a respondent to prove that it does have rights to or legitimate interests in a disputed domain name pursuant to Policy ¶ 4(a)(ii). See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by a complainant, the burden shifts to a respondent to demonstrate its rights or legitimate interests in a disputed domain name pursuant to Policy ¶ 4(c)).
Complainant has made out a prima facie case sufficient for purposes of the Policy. Owing to Respondent’s failure to respond to the Complaint, we may therefore presume that Respondent does not have rights to or legitimate interests in the contested <ashforduniversity.net> domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for a panel to draw adverse inferences from a respondent’s failure to reply to a complaint). We will nonetheless examine the record before us to determine, by reference to the standards set out in Policy ¶ 4(c), whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that there is no evidence in the record tending
to demonstrate that Respondent is commonly known by <ashforduniversity.net>
domain name. Moreover, Complainant
asserts, and Respondent does not deny, that Complainant has not authorized
Respondent to use the
We also observe that Respondent does contest Complainant’s
assertion that Respondent’s <ashforduniversity.net> domain name
resolves to a website featuring a search engine and a hyperlink directory, and
that the hyperlinks featured on the resolving website relate to Complainant’s
competitors in the educational services business, presumably for the profit of
Respondent. The use of a domain name
that is identical to the
The Panel therefore finds that the requirements of Policy ¶ 4(a)(ii) have been satisfied.
We have already determined that Respondent is using the <ashforduniversity.net> domain name, which is identical to Complainant’s ASHFORD UNIVERSITY mark, to redirect Internet users interested in Complainant to a website featuring a search engine and hyperlinks to Complainant’s competitors in the educational services business. Such use of the disputed domain name constitutes disruption of Complainant’s educational services business and is evidence of bad faith registration and use of the domain 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 contested domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s business competitors represents bad faith registration and use of the domain under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007):
This
Panel concludes that by redirecting Internet users seeking information on
Complainant’s educational institution to competing websites, Respondent has engaged
in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
From the circumstances here presented, we may infer that
Respondent receives click-through fees from the website and links resolving
from the contested domain name, and thus profits from its use of the
domain. Therefore, and because the domain
name <ashforduniversity.net> is identical to Complainant’s mark,
Internet users may become confused as to Complainant’s possible affiliation
with Respondent’s resolving website and featured hyperlinks. Respondent’s attempt to profit from this
likelihood of confusion evidences bad faith registration and use of the
contested domain under Policy ¶ 4(b)(iv). See
Respondent is using the disputed domain name
to operate a website which features links to competing and non-competing
commercial websites from which Respondent presumably receives referral
fees. Such use for Respondent’s own
commercial gain is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).
See also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that a respondent engaged in bad faith registration and use of a domain name that was confusingly similar to a complainant’s mark by using it to offer links to third-party websites featuring services similar to those offered by that complainant).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <ashforduniversity.net> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 24, 2010
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