Baylor University v. Leo deGeest
Claim Number: FA1303001492028
Complainant is Baylor University (“Complainant”), represented by Wendy C. Larson, Texas, USA. Respondent is Leo deGeest (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <belmontbaylor.com>, <belmont-lofts-baylor.com>, <belmontloftsbaylor.com>, and <thebelmontbaylor.com>, registered with GODADDY.COM, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on March 28, 2013; the National Arbitration Forum received payment on March 28, 2013.
On March 28, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <belmontbaylor.com>, <belmont-lofts-baylor.com>, <belmontloftsbaylor.com>, and <thebelmontbaylor.com> domain names are registered with GODADDY.COM, LLC and that Respondent is the current regis-trant of the names. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 March 29, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2013 by which Respondent could file a Response to the Complaint, via e-mail message addres-sed to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@belmontbaylor.com, postmaster@belmont-lofts-baylor.com, postmaster@belmontloftsbaylor.com, postmaster@thebelmontbaylor.com. Also on March 29, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail 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, adminis-trative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 30, 2013, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is the oldest continually operating institution of higher learning in the United States’ state of Texas, offering goods and services under the BAYLOR and BAYLOR UNIVERSITY marks.
Complainant holds registrations for its BAYLOR and BAYLOR UNIVERSITY marks, on file with the United States Patent and Trademark Office “USPTO,” including (for BAYLOR) Reg. No. 1,465,910, registered November 17, 1987).
The disputed domain names <belmontbaylor.com>, <belmont-lofts-baylor.com>, <belmontloftsbaylor.com> and <thebelmontbaylor.com> were registered between November 23, 2011, and March 26, 2012.
All of the domain names are confusingly similar to Complainant’s BAYLOR mark.
Respondent has not been commonly known by any of the domain names.
Respondent is not making a legitimate noncommercial or fair use of the domain names.
Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services.
On its campus, Complainant provides a variety of housing options for its under-graduate and graduate students, including traditional residential housing, living-learning programs focused on particular student interests, and apartment style communities for upper division and transfer students.
Respondent offers for-profit housing services that compete with the offerings of Complainant.
Respondent’s <belmontbaylor.com> domain name resolves to a page advertising rental properties in the same city in which Complainant is located.
Respondent’s <thebelmontbaylor.com> domain name resolves to a website en-titled “the Belmont Lofts,” which advertises rental properties.
Both the <belmontbaylor.com> and <thebelmontbaylor.com> domain names solicit Internet users’ personal information for its commercial gain.
Respondent’s <belmont-lofts-baylor.com> and <belmontloftsbaylor.com> resolve to a parked website from which Respondent collects pay-per-click fees through the operation of links and advertisements featured on its pages.
Respondent has no rights to or legitimate interests in any of the domain names.
Respondent’s use of the disputed domain names is an attempt to mislead con-sumers by associating itself with Complainant.
Respondent has declared that it is willing to consider an offer from Complainant to purchase the domain names.
Respondent registered and is using the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are being used by Respondent in bad faith.
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."
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the BAYLOR service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark auth-ority, the USPTO. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that a complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the marks pursuant to Policy ¶ 4(a)(i)).
Turning to the central question arising under Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <belmontbaylor.com>, <belmont-lofts-baylor.com>, <belmontloftsbaylor.com>, and <thebelmontbaylor.com> domain names are confusingly similar to Complainant’s BAYLOR service mark. Each of the disputed domain names contains Complainant’s BAYLOR mark, plus the term “Belmont,” which is apparently Respondent’s business name. The descript-ive term “lofts” in the <belmont-lofts-baylor.com> and <belmontloftsbaylor.com> domain names evidently describes an aspect of the housing business which competes with that of Complainant. Each of the domain names also includes the generic top-level domain “gTLD“ (“.com”), and one of them (the domain name <thebelmontbaylor.com>) contains the definite article “the,” while the domain name <belmont-lofts-baylor.com> adds hyphens on either side of the term “lofts.” These alterations of the BAYLOR mark, made in creating the domain names, are inadequate to avoid a finding of confusing similarity under the standards of the Policy. See Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Nat. Arb. Forum Sept. 6, 2007):
[T]he addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names.
See also Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to a UDRP complainant’s AIG mark in forming a domain name failed to distinguish the domain name from the mark under Policy ¶ 4(a)(i) because the appended term related to that complainant’s insurance business). Further see Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003):
[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).
Finally see Quixtar Inv., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000) (finding that, because the domain name <quixtar-sign-up.com> incorporated a complainant’s entire QUIXTAR mark, the domain name was confusingly similar to that mark).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent owns no trademark or other intellectual property rights in the domain names, and that Respondent has not been commonly known by any of them. Moreover, the WHOIS information for the disputed domain names identi-fies the registrant only as “Leo de Geest,” which does not resemble any of the domain names. On this record, we conclude that Respondent has not been commonly known by any of the disputed domain names so as to have demon-strated that it has rights to or legitimate interests in any of them within the mean-ing of Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact inform-ation for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”)
We next observe that Complainant asserts, without objection from Respondent, that Respondent has no rights to or legitimate interests in any of the contested domain names in that it is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain names. Specifically, Com-plainant contends that the <belmontbaylor.com> and <thebelmontbaylor.com> domain names resolve to a website entitled “The Belmont Lofts,” and that this site advertises rental properties in the same city in which Complainant is located. As to the <belmont-lofts-baylor.com>, and <belmontloftsbaylor.com> domain names, Complainant alleges that they resolve to a parked website featuring links to and advertisements for other sites unaffiliated with Complainant. In the cir-cumstances presented in the Complaint, we may comfortably presume that Re-spondent collects pay-per-click fees from the operation of the described links. This employment of the domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain names under Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because a “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” that respondent was not using the domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that a respondent had no rights to or legitimate interests in a disputed domain name under Policy ¶¶ 4(c)(i) or 4(c)(iii) where it was used to operate a website featuring links to other sites offering goods and services unrelated to a UDRP complainant).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are convinced from the evidence that Respondent’s employment of the dis-puted domain names in the manner described in the Complaint disrupts Com-plainant’s business. This stands as proof that the domain names were registered and are being used in bad faith as described in Policy ¶ 4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007):
Respondent currently utilizes the disputed domain name, … to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).
See also Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005):
The Respondent … operates in the same business as the Com-plainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy ¶ 4(b)(iii).
We are also persuaded from the evidence that Respondent uses the disputed domain names, each of which is confusingly similar to Complainant’s BAYLOR service mark, in a fashion that, for Respondent’s commercial gain, confuses Internet users as to the possibility that the resolving websites are sponsored by or otherwise affiliated with Complainant. This shows that Respondent registered and uses the domain names in bad faith as contemplated in Policy ¶ 4(b)(iv). See, for example, 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 web-site which features links to competing and non-competing commer-cial 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 thus finds that Complainant has met its obligations of proof under
Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <belmontbaylor.com>, <belmont-lofts-baylor.com>, <belmontloftsbaylor.com>, and <thebelmontbaylor.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 13, 2013
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