West Coast University, Inc.
v. John Bonnic a/k/a West Coast Union Education and
Claim Number: FA1003001311691
PARTIES
Complainant is West Coast University, Inc., (“Complainant”) represented by Michelle
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wcuedu.us>, registered with Tucows, Inc., and <wcuwebsite.us>, registered
with eNom,
Inc.
PANEL
The undersigned certifies that she has acted independently and
impartially and that to the best of her knowledge she has no known conflict in
serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as
Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically March 5, 2010;
the Forum received a hard copy of the Complaint March
8, 2010.
On March 9, 2010 eNom, Inc., confirmed by e-mail to the Forum that
the <wcuwebsite.us>
domain name is registered with eNom,
Inc., and that Resondent is the current regisrant of the name. eNom, Inc. verified
that Respondent is bound by the eNom, Inc. registration
agreement and thereby has agreed to resolve domain-name disputes brought by
third parties in accordance with the U. S. Department of Commerce’s usTLD
Dispute Resolution Policy (the “Policy”).
On March 12, 2010 Tucows, Inc. confirmed by e-mail to the Forum that
the <wcuedu.us> domain name is registred with Tucows, Inc., and that
Respondent is the current registrant of the name. Tucows, Inc.,
verified that Respondent is bound by the Tucows,
Inc. registration agreement and thereby has agreed to resolve domain-name
disputes brought by third parties in accordance with the U. S. Department of
Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 19, 2010, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of April 8, 2010, by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On April 14, 2010, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn
Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any
rules and principles of law that the Panel deems applicable, without the
benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following allegations in the Complaint:
1. The
domain names that Respondent registered, <wcuedu.us> and <wcuwebsite.us>,
are confusingly similar to Complainant’s
2.
Respondent has no rights or legitimate interests
in the <wcuedu.us> and <wcuwebsite.us>
domain names.
3.
Respondent registered and used the <wcuedu.us> and <wcuwebsite.us> domain names in
bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, West Coast University, Inc., holds a trademark registration with the United States
Patent and Trademark Office (“USPTO”) for the
Respondent registered the <wcuedu.us> domain name December 24, 2008, and the <wcuwebsite.us> domain name November 6, 2006. Respondent’s disputed domain names resolve to what appears to be a website for Complainant, with links to information about the school, financial aid, tuition rates and other school related links. Respondent’s disputed domain names appear to be affiliated with Complainant’s education institution but are not.
DISCUSSION
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.”
Given
Respondent's failure to submit a Response, the Panel shall decide this
administrative proceeding on the basis of the Complainant's undisputed
representations pursuant to Paragraphs 5(f), 14(a) and 15(a) of the Rules and will
draw such inferences as the Panel 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 Complainant to 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 the
Respondent is identical or confusingly similar to a trademark or service mark
in which the 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 or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Preliminary Issue: Multiple Respondents
In the instant proceedings,
Complainant has alleged that the entities which control the domain names at
issue are effectively controlled by the same person and/or entity, which is
operating under several aliases. Paragraph
3(c) of the Rules for Uniform Domain Name
Dispute Resolution Policy (the “Rules”) provides that a “complaint may
relate to more than one domain name, provided that the domain names are
registered by the same domain name holder.”
Complainant contends that Respondents are effectively controlling the
disputed domain names as one entity.
Complainant notes that the WHOIS information lists both of the domain
name registrants as having virtually the same mailing address, as well as
having the same contact phone number, and e-mail address. Complainant further notes that while the
registrant of the <wcuwebsite.us> domain name is listed as
The Panel finds that Complainant
presented sufficient evidence that the disputed domain names are controlled by the
same entity and thus the Panel chooses to proceed with the instant proceedings.
Identical
to and/or Confusingly Similar
The Panel finds that Complainant established its
rights in the
Complainant argues that the <wcuedu.us> and <wcuwebsite.us> domain names are confusingly similar to its
The Panel finds that the <wcuedu.us> and <wcuwebsite.us> domain names are confusingly similar to Complainant’s
The Panel finds that Complainant
satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights
to or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case to support its allegations, the burden of proof shifts to Respondent to prove it does have rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant made a prima facie case to support its contentions and that Respondent failed to submit a Response that would counter those contentions. 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 [UDRP] ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”).
Nevertheless, this Panel still examines the record to determine if evidence among the proof suggests that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
No evidence in the record indicates that Respondent owns any service marks or trademarks that reflect the <wcuedu.us> and <wcuwebsite.us> domain names. Therefore, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name); see also Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Complainant also argues
that Respondent is not commonly known by the disputed domain names and that
Complainant has never given Respondent permission to use its
Complainant further contends that Respondent is using the confusingly similar disputed domain names to obtain personal information from Internet users as well as to profit from the sale of fake degrees. Complainant further alleges that this scam prominently features Complainant’s mark and is evidence that Respondent lacks rights and interests in the disputed domain names. The Panel finds that Respondent’s “phishing” for personal information, while offering what appears to Internet users to be competing educational services of Complainant, is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to UDRP ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to UDRP ¶ 4(c)(iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
Additionally, Respondent’s disputed domain names resolve to websites that display Complainant’s
The Panel finds that Respondent has no rights to or legitimate
interests in the disputed domain names in issue and that Complainant satisfied
the elements of ICANN Policy ¶ 4(a)(ii).
Registration
and Use in Bad Faith
Complainant contends that Respondent’s use of
the <wcuedu.us> and <wcuwebsite.us> domain names to divert Internet users to its confusingly
similar website creates a disruption in Complainant’s
business. Complainant argues that
Internet users seeking Complainant’s educational institution are being
re-directed to Respondent’s website and that this results in a loss of
enrollment for Complainant of those consumers.
The Panel finds that Respondent’s use of the disputed domain names to
divert Internet users to its confusingly similar website is evidence of bad
faith registration and use under Policy ¶ 4(b)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb.
Forum Aug. 11, 2004) (finding bad faith registration and use because the
respondent used the domain name to redirect Internet users to a website that
imitated the complainant’s website and to fraudulently acquire personal information
from the complainant’s clients); 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 [UDRP] ¶ 4(b)(iii).”).
Further, Respondent is using the confusingly similar disputed domain
names to intentionally attract Internet users to its website to “phish” for the
Internet users’ personal information and thereby is creating a strong
likelihood of confusion with Complainant’s
Complainant further contends that Respondent is using the disputed domain names to
pass itself off as Complainant by imitating Complainant’s official websites on
Respondent’s opportunistic websites. The Panel finds that Respondent’s
attempt to pass itself off as Complainant constitutes bad faith use and
registration pursuant to Policy ¶ 4(a)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb.
Forum May 30, 2003) (finding that the disputed domain name was registered and
used in bad faith where the respondent hosted a website that “duplicated
Complainant’s mark and logo, giving every appearance of being associated or
affiliated with Complainant’s business . . . to
perpetrate a fraud upon individual shareholders who respected the goodwill
surrounding the AIG mark”); see also Target
Brands, Inc. v. JK Internet Servs., FA 349108 (Nat. Arb. Forum
The Panel finds that Respondent acted in bad faith in registering and
using the disputed domain names and that Complainant satisfied the elements of
ICANN Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wcuedu.us> and <wcuwebsite.us> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks
Johnson, Panelist
Dated: April 28, 2010.
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