The Associated Press v. Aaron Angle
Claim Number: FA1106001392683
Complainant is The Associated Press (“Complainant”), represented by Nancy E. Wolff of Cowan DeBaets Abrahams & Sheppard, LLP, New York, USA. Respondent is Aaron Angle (“Respondent”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <associatedpressonline.com>, registered with 1 & 1 Internet AG.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 8, 2011; the National Arbitration Forum received payment on June 8, 2011.
On June 10, 2011, 1 & 1 Internet AG confirmed by e-mail to the National Arbitration Forum that the <associatedpressonline.com> domain name is registered with 1 & 1 Internet AG and that Respondent is the current registrant of the name. 1 & 1 Internet AG has verified that Respondent is bound by the 1 & 1 Internet AG 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 June 14, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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@associatedpressonline.com. Also on June 14, 2011, 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 July 8, 2011 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <associatedpressonline.com> domain name is confusingly similar to Complainant’s THE ASSOCIATED PRESS mark.
2. Respondent does not have any rights or legitimate interests in the <associatedpressonline.com> domain name.
3. Respondent registered and used the <associatedpressonline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Associated Press, owns the THE ASSOCIATED PRESS mark which it uses in connection with its newsgathering and news distributing services, much of which is done online. Complainant owns federal trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its THE ASSOCIATED PRESS mark (e.g., Reg. No. 411,547 issued January 23, 1945).
Respondent, Aaron Angle, registered the disputed domain name on February 17, 2011. The disputed domain name resolves to the website for a business, United Recovery Solutions, which is involved in consumer and commercial debt collection for a contingency fee. Upon receiving inquiries as to the location of Complainant’s webpage, Respondent offered to sell the disputed domain name to Complainant.
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, in order to move forward, must have evidence of its rights in the THE ASSOCIATED PRESS mark. Registration of a mark with a federal trademark agency is a sufficient basis upon which a complainant may claim that rights have been established. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO). Complainant has provided the Panel with evidence of USPTO registration for the THE ASSOCIATED PRESS mark (e.g., Reg. No. 411,547 issued January 23, 1945). Therefore, the Panel finds that Complainant has established rights in its mark under Policy ¶ 4(a)(i).
The disputed domain name has been argued to be confusingly similar to Complainant’s mark. The argument is as follows: the deletion of the word “the,” the addition of the descriptive word “online,” and the addition of the generic top-level domain (“gTLD”) “.com” fail to distinguish the disputed domain name from Complainant’s mark. Previous panels have found these changes not to negate confusion, and thus also a finding of confusing similarity. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”); see also Buffalo News v. Barry, FA 146919 (Nat. Arb. Forum Mar. 31, 2003) (finding the respondent's <bufalonews.com> domain name confusingly similar to Complainant's THE BUFFALO NEWS mark); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). Based on this precedent, the Panel finds that the <associatedpressonline.com> domain name is confusingly similar, pursuant to Policy ¶ 4(a)(i), to Complainant’s THE ASSOCIATED PRESS mark.
The Panel finds that Policy ¶ 4(a)(i) has been met.
Complainant has made a prima facie case in support of its allegations that Respondent lacks rights and legitimate interests in the disputed domain name. As such, the burden shifts to Respondent to prove that it does have some rights or legitimate interests in the disputed domain name. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”); 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.”). The Panel may assume, due to a respondent’s failure to submit a response to a complaint, that no rights or legitimate interests exist in the disputed domain name on behalf of the respondent. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”) Regardless, the Panel will review the record to determine if Respondent has rights or legitimate interests in the disputed domain name.
Where a respondent is commonly known by a disputed domain name, the WHOIS information for the domain name often reflects this fact. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). The WHOIS information for the <associatedpressonline.com> domain name lists “Aaron Angle” as the domain name registrant. Respondent has not been given permission by Complainant to use the THEASSOCIATED PRESS mark. As a result, the Panel must find that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent has not made a protected use of the disputed domain name, namely either a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent uses the disputed domain name to run a website for a debt collection business which Respondent receives contingency fees for the collections done. The use of a domain name to divert Internet users from a complainant’s website to a disputed domain name for a respondent’s benefit is neither a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and 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 Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). Respondent is using the confusing similarity of the disputed domain name in order to attract more Internet traffic to its own commercial webpage. Therefore, the Panel finds that Respondent’s use of the domain name to divert Internet users away from Complainant for its own benefit is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Rather than having found traditional evidence of rights or legitimate interests in the disputed domain name on behalf of Respondent, the Panel finds additional evidence of a lack of such rights and legitimate interests: an offer to sell the disputed domain name. It is not uncommon for panels to find that the offer to sell a disputed domain is evidence of a lack of rights and legitimate interests. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)); see also Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”). Respondent directly offered to sell the disputed domain name to Complainant. The Panel thus finds this to be further evidence that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii) in the <associatedpressonline.com> domain name.
The Panel finds that Complainant, having demonstrated ample evidence of Respondent’s lack of rights and legitimate interests in the disputed domain name, has met the required elements of Policy ¶ 4(a)(ii).
Respondent, after having received numerous inquiries from Internet users as to the location of Complainant’s webpage, offered to sell the disputed domain name to Complainant. An offer to sell a domain name to a complainant, knowing that the domain name is being associated with the complainant’s mark, has been seen as evidence of bad faith. See Pocatello Idaho Auditorium Dist. v. CES Mktg. Group, Inc., FA 103186 (Nat. Arb. Forum Feb. 21, 2002) ("[w]hat makes an offer to sell a domain [name] bad faith is some accompanying evidence that the domain name was registered because of its value that is in some way dependent on the trademark of another, and then an offer to sell it to the trademark owner or a competitor of the trademark owner"); see also Little Six, Inc. v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding the respondent's offer to sell the domain name at issue to the complainant was evidence of bad faith). Respondent sought out Complainant to solicit the sale of the domain name to before opening the offer up to the public. Therefore, the Panel finds the offer to sell the domain name is evidence of bad faith registration and use under Policy ¶ 4(b)(i).
Taking Complainant’s uncontested allegations as true, Respondent uses the disputed domain name in connection with a business, United Recovery Solutions, which is involved in consumer and commercial debt collection for a contingency fee. Panels have found previously that the registration and use of a confusingly similar disputed domain name by a respondent to redirect Internet traffic to its own, commercially beneficial, website demonstrates bad faith due to an attraction for commercial gain under Policy ¶ 4(b)(iv). See State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the respondent registered the domain name <statefarmnews.com> in bad faith because the respondent intended to use the complainant’s marks to attract the public to the web site without permission from the complainant); 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). Therefore, the Panel finds that Respondent’s registration and use of a confusingly similar domain name so as to generate a greater number of visits by Internet users that have the potential to boost Respondent’s profits was done in bad faith under Policy ¶ 4(b)(iv).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <associatedpressonline.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: July 8, 2011
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