Vanguard
Trademark Holdings
Claim Number: FA1001001304766
Complainant is Vanguard
Trademark Holdings USA LLC (“Complainant”), represented by Renee Reuter, of Vanguard Trademark
Holdings USA LLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aalamo.com>, registered with Fabulous.com Pty Ltd.
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 January 26, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 29, 2010.
On January 26, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <aalamo.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty 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 February 1, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 22, 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@aalamo.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 3, 2010, 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
<aalamo.com> domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <aalamo.com> domain name.
3. Respondent registered and used the <aalamo.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vanguard Trademark Holdings USA LLC, licenses
its
Respondent, Domain Privacy LTD c/o DNS Admin, registered the disputed domain name on July 16, 2004. The disputed domain name resolves to a website that displays links to car services from Complainant’s and Complainant’s direct competitors.
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.
The Panel finds Complainant’s registration with the USPTO
for the
Complainant contends Respondent’s <aalamo.com>
domain name is confusingly similar to Complainant’s
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
For the purposes of a Policy ¶ 4(a)(ii) analysis Complainant must first make a prima facie case demonstrating Respondent’s lack of rights and legitimate interests in the <aalamo.com> domain name. The Panel finds Complainant has done so in these proceedings. Once Complainant satisfies this burden, Respondent then has the burden to show it possesses rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). In the present proceedings, Respondent has failed to respond to Complainant’s allegations. The Panel may infer from this failure that Respondent lacks any rights or legitimate interests in the <aalamo.com> domain name. 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 Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). The Panel now chooses to review the record to determine whether Respondent has any rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
The disputed domain name resolves to a website displaying click-through links resolving to Complainant’s website and to the websites of Complainant’s competitors in the car rental industry. Complainant contends Respondent’s use of a confusingly similar domain name to redirect Internet users to the websites of Complainant’s competitors does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or (iii), respectively. The Panel finds Respondent has failed to use the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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 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).”); see also Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
Furthermore, Complainant contends Respondent is not commonly
known by the <aalamo.com> domain name pursuant to Policy ¶ 4(c)(ii). The WHOIS
information does not reflect Respondent is commonly known by the disputed
domain name or Complainant’s
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain name to resolve to a
website displaying click-through links promoting businesses that are in direct
competition with Complainant in the car rental industry. The Panel finds this diversion of Internet
users to Respondent’s disputed domain name likely disrupts Complainant’s
business and thus, constitutes bad faith registration and use pursuant to
Policy ¶ 4(b)(iii).
See David Hall Rare Coins v.
Furthermore, Respondent is presumably using the disputed domain name to collect click-through fees. The Panel finds Respondent’s use of the confusingly similar disputed domain name creates a likelihood of confusion as to Complainant’s affiliation with the <aalamo.com> domain name. The Panel finds Respondent is likely profiting from this confusion through the receipt of click-through or referral fees. Therefore, the Panel concludes Respondent has engaged in bad faith registration and use of the <aalamo.com> domain name under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also 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)).
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 <aalamo.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: March 17, 2010
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