Baylor University v. Rampe Purda
Claim Number: FA1101001370287
Complainant is Baylor University (“Complainant”), represented by Wendy C. Larson of Pirkey Barber LLP, Texas, USA. Respondent is Rampe Purda (“Respondent”), Finland.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <baylorsing.com> and <baylorhealthcenter.com>, registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 31, 2011; the National Arbitration Forum received payment on February 22, 2011. The Complaint was submitted in both the Finnish and English languages.
On February 24, 2011, Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com confirmed by e-mail to the National Arbitration Forum that the <baylorsing.com> and <baylorhealthcenter.com> domain names are registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com and that Respondent is the current registrant of the names. Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com has verified that Respondent is bound by the Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com 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 February 24, 2011, the Forum served the Complaint and all Annexes, including a Finnish language Written Notice of the Complaint, setting a deadline of March 16, 2011 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@baylorsing.com and postmaster@baylorhealthcenter.com. Also on February 24, 2011, the Finnish language 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 March 14, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Finnish language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <baylorsing.com> and <baylorhealthcenter.com> domain names are confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorsing.com> and <baylorhealthcenter.com> domain names.
3. Respondent registered and used the <baylorsing.com> and <baylorhealthcenter.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Baylor University, was chartered in 1845, and is the oldest operating institution of higher learning in the state of Texas. Complainant offers a wide educational curriculum including programs in the arts, sciences, business, law, nursing, education, engineering, computer science, music, social work, and theology. Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for the BAYLOR mark (e.g., Reg. No. 1,465,910 issued November 17, 1987).
Respondent, Rampe Purda, is the registrant of record for the <baylorsing.com> (January 28, 2010) and <baylorhealthcenter.com> (December 11, 2009) domain names. Respondent’s disputed domain names resolve to websites that feature various third-party links to educational websites and institutions in competition with Complainant.
Complainant submits evidence to show that Respondent has been the respondent in more than thirty prior UDRP proceedings where it was ordered to transfer the domain names at issue to the respective complainant’s. See Priceline.com, Inc. v. Purda, FA 1307268 (Nat. Arb. Forum March 30, 2010); see also AOL Inc. v. Purda, FA 1330828 (Nat. Arb. Forum June 30, 2010); see also Travelocity.com LP v. Purda, FA 1343690 (Nat. Arb. Forum October 15, 2010).
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 that Complainant has provided sufficient evidence to establish rights in its BAYLOR mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g., Reg. No. 1,465,910 issued November 17, 1987). The Panel further finds that there is no requirement that Complainant establish rights in the country of Respondent’s residence for purposes of Policy ¶ 4(a)(i). 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant contends that the <baylorsing.com> and <baylorhealthcenter.com> domain names are confusingly similar to Complainant’s BAYLOR mark. Complainant first argues that the <baylorsing.com> domain name contains its entire mark while adding the descriptive term “sing,” which describes an annual event held by Complainant at its university. Further, Complainant argues that the <baylorhealthcenter.com> domain name also contains its entire mark while adding the descriptive terms “health” and “center” which describe Complainant’s medical center and hospital. Lastly, Complainant asserts that the addition or presence of a generic top-level domain (“gTLD”) such as “.com” is irrelevant under a Policy ¶ 4(a)(i) analysis. The Panel agrees with Complainant and finds that Respondent’s disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). 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 Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark); see also 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).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <baylorsing.com> and <baylorhealthcenter.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient 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 disputed domain names. 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant further contends that Respondent is not commonly known by the disputed domain name, nor has Complainant given Respondent permission to use Complainant’s mark. The WHOIS information for the disputed domain name identifies Respondent as “Rampe Purda,” and there is no further evidence on record showing that Respondent is commonly known by the disputed domain name. The Panel finds that without affirmative evidence of Respondent being commonly known by the disputed domain name, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).
Complainant argues that the disputed domain names both resolve to websites that are parked with the registrar which display various third-party links to competing educational institutions and medical centers, as well as to unrelated businesses. Complainant contends that such use of a confusingly similar domain name is not a bona fide offering of goods or services under the Policy. The Panel agrees and finds that Respondent’s use of the disputed domain names to display third-party links to Complainant’s competitors in the education industry, presumably for financial gain, is not 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 TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends, and submits evidence to show that Respondent has been the respondent in more than thirty prior UDRP proceedings where it was ordered to transfer the domain names at issue in those cases to the respective complainants. See Priceline.com, Inc. v. Purda, FA 1307268 (Nat. Arb. Forum March 30, 2010); see also AOL Inc. v. Purda, FA 1330828 (Nat. Arb. Forum June 30, 2010); see also Travelocity.com LP v. Purda, FA 1343690 (Nat. Arb. Forum October 15, 2010). Complainant argues that such evidence also establishes that Respondent registered and is using the <baylorsing.com> and <baylorhealthcenter.com> domain names in bad faith. The Panel finds that Respondent has registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)).
Further, the Panel finds that Respondent’s use of the disputed domain name to display third-party links that lead to Complainant’s competitors in the education industry is further evidence of bad faith under Policy ¶ 4(b)(iii). 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 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 Policy ¶ 4(b)(iii).”).
Complainant argues, and the Panel infers that Respondent receives monetary compensation from its posting of commercial links on the websites resolving from the disputed domain names. Therefore, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); 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 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 <baylorsing.com> and <baylorhealthcenter.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 25, 2011
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