Board of Regents, The
Claim Number: FA1004001320902
Complainant is Board
of Regents, The
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <universityoftexasonline.net>, registered with Dotster.
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 April 23, 2010.
On April 23, 2010, Dotster confirmed by e-mail to the National Arbitration Forum that the <universityoftexasonline.net> domain name is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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 April 27, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@universityoftexasonline.net by e-mail. Also on April 27, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 25, 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 "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:
1. Respondent’s
<universityoftexasonline.net> domain name is confusingly similar
to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <universityoftexasonline.net> domain name.
3. Respondent registered and used the <universityoftexasonline.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <universityoftexasonline.net>
domain name on January 21, 2010. The
disputed domain name resolves to a website listing hyperlinks that reference
Complainant but resolve to websites which offer competing educational services.
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.
Previous panels have held that a complainant may establish
rights in a mark under Policy ¶ 4(a)(i) by holding a
trademark registration with a federal trademark authority. 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 Miller Brewing Co. v. Miller Family, FA 104177 (Nat.
Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights
to the MILLER TIME mark through its federal trademark registrations). Complainant holds a trademark registration
with the USPTO for its
Complainant alleges that Respondent’s <universityoftexasonline.net>
domain name is confusingly similar to Complainant’s
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <universityoftexasonline.net> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a 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 <universityoftexasonline.net> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Complainant argues that Respondent is not commonly known by
the <universityoftexasonline.net> domain name. Complainant alleges that Respondent does not
own any trademark or intellectual property rights for the disputed domain
name. Complainant further asserts that
Respondent is not licensed or authorized to use Complainant’s
Respondent utilizes the <universityoftexasonline.net>
domain name to resolve to a website that contains a list of hyperlinks that
resolve to Complainant’s competitors in the educational services business. Complainant claims that Respondent receives
click-through-fees from the hyperlinks.
The Panel finds Respondent’s use of the confusingly similar domain name
to feature hyperlinks to competitors of Complainant is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <universityoftexasonline.net>
domain name pursuant to Policy ¶ 4(c)(iii).
See Jerry Damson, Inc. v.
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <universityoftexasonline.net> domain name resolves to a website that features hyperlinks which resolve to Complainant’s competitors in the educational services industry. Previous panels have held that a respondent’s use of a disputed domain name to feature a list competing hyperlinks disrupts a complainant’s business because Internet users interested in a complainant’s services may purchase competing services from a competitor of the complainant because of the respondent’s use of the disputed domain name. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)). For these reasons, the Panel determines that Respondent’s use of the <universityoftexasonline.net> domain name does disrupt Complainant’s educational services business, which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Complainant alleges, and the Panel presumes, that Respondent commercially benefits from the receipt of click-through-fees. Complainant claims that the aforementioned hyperlinks are pay-per-click links from which Respondent receives a fee each time an Internet user clicks on the hyperlink. Complainant argues that Respondent is attempting to create Internet user confusion as to Complainant’s sponsorship of or affiliation with the disputed domain name in order to profit from that confusion. The Panel concludes that Respondent’s use of the <universityoftexasonline.net> domain name constitutes bad faith registration and use pursuant to 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 Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“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).”).
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 <universityoftexasonline.net> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 7, 2010
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