Invesco Ltd. v. Rubena Lowe / I sell domains! Please contact me directly!
Claim Number: FA1403001548879
Complainant is Invesco Ltd. (“Complainant”), represented by Kitty Bina of Alston & Bird, LLP, Georgia, USA. Respondent is Rubena Lowe / I sell domains! Please contact me directly! (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <invescofunds.com>, registered with DYNADOT LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 16, 2014; the National Arbitration Forum received payment on March 17, 2014.
On March 17, 2014, DYNADOT LLC confirmed by e-mail to the National Arbitration Forum that the <invescofunds.com> domain name is registered with DYNADOT LLC and that Respondent is the current registrant of the name. DYNADOT LLC has verified that Respondent is bound by the DYNADOT 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 18, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 2014 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@invescofunds.com. Also on March 18, 2014, 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, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 11, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant is a global investment manager that operates in more than twenty countries. As of December 31, 2013, Complainant had more than $775 billion in assets under its management. Complainant and its affiliates have used INVESCO and related marks to promote their services since at least as early as 1979. Complainant holds numerous trademark registrations for INVESCO and related marks in the United States and other countries worldwide.
The disputed domain name <invescofunds.com> was registered on July 11, 2008. Complainant contends that this domain name is confusingly similar to its INVESCO marks.
Respondent is currently using the domain name for a website consisting of a series of pages containing links to third-party sites, including links to Complainant’s direct competitors; Complainant alleges that Respondent is profiting from this use. Complainant states that Respondent has no connection or affiliation with Complainant, nor been licensed to use Respondent’s marks in any manner. On these grounds Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant asserts that Respondent could not have registered the disputed domain name without knowledge of Complainant’s trademark rights, and that the inclusion of the word “funds” in the domain name and the use of the name to link to competitors’ websites further indicate Respondent’s intent to benefit from confusion with Complainant’s mark. On these grounds Complainant contends that Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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 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.
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.”).
The disputed domain name combines Complainant’s trademark with the generic term “funds” and the top-level domain suffix “.com”. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Value Line, Inc. v. Fundacion Private Whois / PPA Media Services, Ryan G Foo, D2013-1310 (WIPO Sept. 26, 2013) (finding <valuelinefunds.com> confusingly similar to VALUE LINE); Invecso Ltd. v. Vindo International Ltd. / Vinco Customer, FA 1387393 (Nat. Arb. Forum June 10, 2011) (finding <invescoperpetualfunds.com> confusingly similar to INVESCO PERPETUAL). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The evidence before the Panel suffices to make a prime facie case, and Respondent has failed to come forward with any evidence of rights or legitimate interests. The Panel finds that Complainant has met its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of a domain name that is nearly identical to Complainant’s mark, together with the use of that domain name to link to commercial websites that compete with Complainant, is indicative of bad faith under one or both of these provisions of the Policy. See, e.g., Value Line, Inc., supra; State Farm Mutual Automobile Insurance Co. v. Above.com Domain Privacy, FA 1382812 (Nat. Arb. Forum May 10, 2011). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <invescofunds.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 14, 2014
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