Campbell University, Incorporated v. Domain Administrator
Claim Number: FA1010001351706
Complainant is Campbell University, Incorporated ("Complainant"), represented by Maury M. Tepper of Tepper & Eyster, PLLC, North Carolina, USA. Respondent is Domain Administrator ("Respondent"), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cambelluniversity.org>, registered with GoDaddy.com, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 12, 2010; the National Arbitration Forum received payment on October 12, 2010.
On October 12, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <cambelluniversity.org> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 13, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 2, 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@cambelluniversity.org. Also on October 13, 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 November 11, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <cambelluniversity.org> domain name is confusingly similar to Complainant’s CAMPBELL UNIVERSITY mark.
2. Respondent does not have any rights or legitimate interests in the <cambelluniversity.org> domain name.
3. Respondent registered and used the <cambelluniversity.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Campbell University, Incorporated, is an educational institution located in North Carolina. Complainant has used its CAMPBELL and CAMPBELL UNIVERSITY mark since 1926 and 1979, respectively, to identify its university services and merchandise. Complainant holds a trademark registration for its CAMPBELL UNIVERSITY mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,377,330 issued February 5, 2008).
Respondent, Domain Administrator, registered the <cambelluniversity.org> domain name on April 22, 2010. The disputed domain name diverts Internet users to a website in connection with an online university selling Internet courses for instant payment by credit card.
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 it has established rights in its CAMPBELL UNIVERSITY mark. Previous panels have found that Complainant’s registration of a mark with a federal trademark authority is sufficient evidence of established rights in the mark. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). Previous panels have also found that Complainant is not required to register its mark within the country of the respondent. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). The Panel therefore finds that Complainant has established rights in its CAMPBELL UNIVERSITY mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,377,330 issued February 5, 2008).
Complainant contends that Respondent’s <cambelluniversity.org> domain name is confusingly similar to its CAMPBELL UNIVERSITY mark. The disputed domain name only differs from Complainant’s mark by the deletion of the single letter “p”, the deletion of a space between the terms of Complainant’s mark, and the addition of the generic top-level domain (“gTLD”) “.org.” The Panel finds that the deletion of a single letter does not sufficiently differentiate the disputed domain name from Complainant’s mark. See Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark). The Panel also finds that the deletion of a space does not properly distinguish the disputed domain name from Complainant’s mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i). Finally, the Panel finds that the addition of a gTLD fails to properly distinguish the disputed domain name from Complainant’s mark. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). The Panel concludes that Respondent’s <cambelluniversity.org> domain name is confusingly similar to Complainant’s CAMPBELL UNIVERSITY mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant argues that Respondent lacks rights and legitimate interests in the <cambelluniversity.org> domain name. The Panel finds that when a complainant establishes a prima facie case in support of its allegations, the burden shifts to the respondent to prove it does have rights or legitimate interests in the disputed domain name. 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.”). Complainant has established a prima facie case. Given Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). However, the Panel will examine the record in order to determine whether Respondent has rights and legitimate interests under Policy ¶ 4(c). See 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.”).
Complainant argues that Respondent is not commonly known by the <cambelluniversity.org> domain name. The WHOIS information identifies Respondent as “Domain Administrator,” which is not similar to the disputed domain name. Complainant also asserts it has never authorized or licensed Respondent to use or register its CAMPBELL mark in the disputed domain name. The Panel finds no additional evidence in the record indicating that Respondent is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <cambelluniversity.org> domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent’s disputed domain name resolves to a website in connection with an online university which sells courses over the Internet. Respondent uses the disputed domain name to generate Internet traffic and revenue for its own benefit by offering educational services in competition with Complainant’s educational institution. The Panel finds that Respondent’s use of a confusingly similar disputed domain name to operate a website that offers services in competition with Complainant is not a bona fide offering of good or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel finds that the element of Policy ¶ 4(a)(ii) have been met.
Respondent’s <cambelluniveristy.org> domain names resolves to Respondent’s website offering online courses and degrees in competition with Complainant’s educational services. Complainant argues that Respondent’s use of the disputed domain name disrupts its business since Internet users searching for information on Complainant’s university may find Respondent’s website and purchase educational services from Respondent instead. The Panel finds that Respondent’s use of the confusingly similar disputed domain name disrupts Complainant’s business and, therefore, is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business).
The Panel infers that Respondent likely benefits through the sale of online courses and degrees via the disputed domain name. Internet users searching for Complainant’s services may find Respondent’s website instead and become confused as to Complainant’s sponsorship of, and affiliation with, the disputed domain name, resolving website, and services offered. Respondent attempts to capitalize off this confusion from increased Internet traffic and sale of its services. The Panel finds that Respondent’s use of the disputed domain name is evidence of bad faith use and registration pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent).
The Panel finds that Policy ¶ 4(a)(iii) has been met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cambelluniversity.org> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: November 22, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page