Claim Number: FA1001001303853
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <baylorbkstr.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 19, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 20, 2010.
On January 21, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <baylorbkstr.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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 22, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 11, 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@baylorbkstr.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 19, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <baylorbkstr.com> domain name is confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorbkstr.com> domain name.
3. Respondent registered and used the <baylorbkstr.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Dezider Banga,
registered the disputed domain name <baylorbkstr.com> September 16, 2009. The disputed domain name resolves to a
website featuring links to third-party websites unrelated to 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 asserts rights in its BAYLOR mark through its
holding of multiple trademark registrations with the USPTO (e.g., Reg.
No. 1,465,910 issued November 17, 1987).
The Panel finds that Complainant has established rights in the BAYLOR
mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See
Expedia, Inc. v. Tan, FA 991075 (Nat.
Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered
with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Renaissance
Hotel Holdings, Inc. v. Renaissance
Complainant argues that
Respondent’s <baylorbkstr.com> domain name is confusingly similar to Complainant’s BAYLOR mark pursuant
to Policy ¶ 4(a)(i). Respondent’s
disputed domain name is confusingly similar as it incorporates the entirety of
Complainant’s mark, adds the descriptive abbreviation for bookstore “bkstr,”
and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of the
descriptive abbreviation “bkstr” creates a confusing similarity between the
disputed domain name and Complainant’s mark.
See Space Imaging LLC v. Brownell, AF-0298
(eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business); see also PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000)
(finding that “Respondent does not by adding the common descriptive or generic
terms ‘corp’, ‘corporation’ and ‘2000’ following ‘PGE’, create new or different
marks in which it has rights or legitimate interests, nor does it alter the
underlying [PG&E] mark held by Complainant”). The Panel also finds that the addition of a
gTLD to a registered mark is irrelevant in distinguishing a disputed domain
name and a mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation
of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also 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 the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)).
The WHOIS information for the disputed domain name lists the
registrant as “Dezider Banga.” There does not appear to be any evidence in
the record to support that Respondent is commonly known by the disputed domain
name. Therefore, the Panel finds that
Respondent is not commonly known by the disputed domain name pursuant to Policy
¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3,
2006) (finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the
WHOIS information and other evidence in the record); see also Coppertown
Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the WHOIS
information, suggesting that the respondent was commonly known by the disputed
domain name).
Respondent’s
disputed domain name resolves to a website featuring links to third-party websites unrelated to
Complainant. Respondent presumably
receives pay-per-click fees from the linked websites. The Panel finds that Respondent is not using
the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)
or making a legitimate noncommercial or fair use of the disputed domain name
pursuant to Policy ¶ 4(c)(iii). See Constellation Wines
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent is using the disputed domain
name to intentionally attract Internet users and profit through the receipt of
pay-per-click fees. The Panel finds that
Respondent’s use of the disputed domain name is evidence of bad faith pursuant
to Policy ¶ 4(b)(iv).
See The Ass’n of Junior
Leagues Int’l Inc. v. This Domain Name My Be For
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 <baylorbkstr.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 4, 2010
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