Aastra Technologies Limited v. c/o buyaastra.com
Claim Number: FA1107001399211
Complainant is Aastra Technologies Limited (“Complainant”), represented by Julie Hyland, Texas, USA. Respondent is c/o buyaastra.com (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <buyaastra.com>, registered with NAMESDIRECT.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically July 18, 2011; the National Arbitration Forum received payment July 18, 2011.
On July 19, 2011, NAMESDIRECT confirmed by e-mail to the National Arbitration Forum that the <buyaastra.com> domain name is registered with NAMESDIRECT and that Respondent is the current registrant of the name. NAMESDIRECT verified that Respondent is bound by the NAMESDIRECT registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 21, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 10, 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@buyaastra.com. Also on July 21, 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 August 16, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit 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. The domain name that Respondent registered, <buyaastra.com> is confusingly similar to Complainant’s AASTRA mark.
2. Respondent has no rights to or legitimate interests in the <buyaastra.com> domain name.
3. Respondent registered and used the <buyaastra.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Aastra Technologies Limited, is a global provider of communication networking products and systems. Complainant owns many federal trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the AASTRA mark (e.g., Reg. No. 2,962,720 registered on June 21, 2005). The registration was filed in the year 2000 and Complainant’s rights date back at least to that date. Complainant uses the mark as its trade name in the industry and to market and promote its telecom services and products.
Respondent, c/o buyaastra.com, registered the disputed domain name March 27, 2004. The disputed domain name resolves to website that offers goods for sale in direct competition with Complainant’s own product offerings.
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 Complainant's undisputed representations pursuant to paragraphs 5(e), 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 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 that it established rights in the AASTRA mark by registering the mark with the USPTO. Registering a mark with the USPTO satisfies the requirement under Policy ¶ 4(a)(i) that a complainant have rights in the mark associated with the proceeding. 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 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).
The Panel finds that Complainant established rights in the AASTRA mark under Policy ¶ 4(a)(i) by registering the mark with the USPTO (e.g., Reg. No. 2,962,720 registered on June 21, 2005). The application was filed in the year 2000 and Complainant’s rights date back to the date of filing.
Complainant also asserts that Respondent’s <buyaastra.com> domain name is confusingly similar to its AASTRA mark. The disputed domain name includes the entire mark while adding the generic top-level domain (“gTLD”) “.com” and the generic term “buy.” The Panel finds that adding a generic term and a gTLD to Complainant’s mark does not differentiate it from the disputed domain name, making the two confusingly similar under Policy ¶ 4(a)(i). 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 Google Inc. v. Xtraplus Corp., D2001-0125 (WIPO Apr. 16, 2001) (finding that the respondent’s domain names were confusingly similar to Complainant’s GOOGLE mark where the respondent merely added common terms such as “buy” or “gear” to the end).
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), if Complainant makes a successful prima facie case indicating that Respondent lacks rights or legitimate interests in the disputed domain name, the burden of proof under this provision shifts to Respondent. 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.”). The Panel finds that Complainant made a prima facie showing in this case. Respondent did not file a Response in this matter, which allows the Panel to assume that Respondent lacks rights or legitimate interests in the disputed domain without more analysis. 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.”). Nonetheless, this Panel still examines the record in its entirety before making a determination under Policy ¶ 4(a)(ii) in accordance with the factors listed in Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the disputed domain name. Respondent submitted no evidence to support a finding that it is commonly known by the disputed domain name. The WHOIS information identifies the registrant of the disputed domain name as “c/o buyaastra.com,” which appears to indicate that Respondent may be commonly known by the disputed domain name. However, without more evidence, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name).
Complainant also urges that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name resolves to a site where Respondent sells goods that compete directly with Complainant’s products. Respondent presumably generates revenue through the sale of these goods, using the website in a commercial manner that seeks to compete with Complainant. The Panel finds that the Respondent is not engaging in a bona fide offering of goods or services under Policy ¶ 4(c)(i) and is not making a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant alleges that Respondent’s disputed domain name disrupts its business and was therefore registered and is being used in bad faith. The disputed domain name resolves to a website that sells complainant’s goods, as well as goods from Complainant’s competitors. Internet users may arrive at this website while looking for Complainant’s products and purchase goods from Respondent instead. Complainant contends that Respondent is not authorized to sell its products through the disputed domain name. Therefore, the Panel finds that Respondent is disrupting Complainant’s business, conduct that supports findings of bad faith registration and use under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)).
Complainant also alleges that Respondent is gaining commercially from the disputed domain name, constituting bad faith registration and use. The disputed domain name resolves to a website where Respondent offers goods for sale, including Complainant’s own products. These goods compete with Complainant’s legitimately offered goods in the telecom industry. Complainant urges that at no point did Complainant authorize Respondent to sell its products. The Panel is permitted to make an inference that Respondent generates revenue through the sale of these products. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Fossil Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (finding that the respondent acted in bad faith by registering the <fossilwatch.com> domain name and using it to sell various watch brands where the respondent was not authorized to sell the complainant’s goods).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant met the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <buyaastra.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: August 29, 2011.
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