Aetna Inc. v. Andreas Meier d/b/a
toptarget.com BV
Claim
Number: FA0305000159414
Complainant is Aetna Inc., Hartford, CT, USA
(“Complainant”) represented by Faye A.
Dion of Aetna Inc.
Respondent is Andreas Meier d/b/a toptarget.com BV, Amsterdam, NETHERLANDS (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <aetnaaz.com>, registered with Enom,
Inc.
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 (the "Forum")
electronically on May 27, 2003; the Forum received a hard copy of the Complaint
on May 29, 2003.
On
May 28, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain name <aetnaaz.com>
is registered with Enom, Inc. and that Respondent is the current registrant of
the name. Enom, Inc. verified that Respondent is bound by the Enom, Inc. registration
agreement and has thereby agreed to resolve domain-name disputes brought by
third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution
Policy (the "Policy").
On
June 2, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 23, 2003, by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e-mail, post and fax, to all entities and persons
listed on Respondent's registration as technical, administrative and billing
contacts, and to postmaster@aetnaaz.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
June 26, 2003, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as
Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the Forum 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."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 registered by Respondent,
<aetnaaz.com>, is confusingly similar to Complainant’s AETNA mark.
2. Respondent has no rights or legitimate
interests in the <aetnaaz.com> domain name.
3. Respondent registered and used the <aetnaaz.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Since 1853,
Complainant, Aetna Inc., has continuously used the AETNA mark in connection
with a wide variety of insurance and financial and health care services. Complainant, directly or through a wholly
owned subsidiary, currently owns many U.S. federal trademarks that are
registered with the U. S. Patent and Trademark Office (“USPTO”) for the AETNA
mark, including Reg. Nos. 1,939,423 (registered December 5, 1995) and 1,744,804
(registered January 5 1993).
Complainant’s USPTO registrations date back to 1923. Complainant also has applied and/or obtained
trademark registrations in thirty-four other countries and/or regions,
including the Netherlands, where Respondent is domiciled.
Complainant,
directly or through a wholly owned subsidiary, owns many domain name
registrations that correspond with its famous marks, including
<aetna.com> (registered Oct. 16, 2002) and <aetna.net> (registered
Oct. 8, 2002). Complainant’s websites
inform the public as well as Complainant’s present and potential customers of
the services it offers under the AETNA mark.
Respondent
registered the <aetnaaz.com> domain name October 3, 2002. Respondent is using the disputed domain name
to redirect Internet traffic to an adult oriented website.
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 will draw such
inferences as the Panel considers appropriate pursuant to paragraph 14(b) of
the Rules.
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
established in this proceeding that it has rights in the AETNA mark through
registration of the mark with the USPTO and by continuous use of the mark in
commerce since 1923.
The domain name
registered by Respondent, <aetnaaz.com>, is confusingly similar to
Complainant’s mark because the disputed domain name appropriates Complainant’s
entire mark and merely adds the letters “az” to the mark. See Aetna Inc. v. Dotsan a/k/a R.S.
Potdar, FA 114457 (Nat. Arb. Forum July 25, 2002) (finding that the
addition of an undecipherable combination of letters in the domain names
<aetnaus.com>, <aetnaush.com>, <aetnaushe.com> and
<aetnashc.com> fails to detract from the overall impression of the
dominant part of the name, namely, the trademark AETNA); see also Victoria’s
Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding,
that by misspelling words or adding letters to words, Respondent does not
create a distinct mark but nevertheless renders the domain name confusingly
similar to the Complainant’s marks).
Accordingly, the
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant
urges that Respondent has no rights to or legitimate interests in the disputed
domain name. Respondent did not provide
the Panel with a Response in this proceeding.
Thus, the Panel may accept all reasonable allegations and inferences in
the Complaint as true. See
Bayerische Motoren Werke AG v Bavarian AG, FA 110830 (Nat. Arb. Forum June
17, 2002) (finding that in the absence of a Response the Panel is free to make
inferences from the very failure to respond and assign greater weight to
certain circumstances than it might otherwise do); see also Desotec N.V. v.
Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to
respond allows a presumption that complainant’s allegations are true unless
clearly contradicted by the evidence).
Moreover, due to
Respondent’s failure to dispute the allegations in the Complaint, the Panel may
presume that Respondent lacks any rights to or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(a)(ii). See Pavillion
Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000)
(finding that Respondents’ failure to respond can be construed as an admission
that they have no legitimate interest in the domain names); see also Canadian Imperial Bank of Commerce v. D3M
Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no
rights or legitimate interests where no such right or interest was immediately
apparent to the Panel and Respondent did not come forward to suggest any right
or interest it may have possessed).
Respondent is
using the <aetnaaz.com> domain name to redirect Internet traffic
to an adult oriented website. This use
is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)
and it is not a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii). See MatchNet plc v. MAC Trading, D2000-0205
(WIPO May 11, 2000) (finding that it is not a bona fide offering of goods or
services to use a domain name for commercial gain by attracting Internet users
to third party sites offering sexually explicit and pornographic material where
such use is calculated to mislead consumers and tarnish the Complainant’s
mark); see also Brown &
Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding
that infringing on another's well-known mark to provide a link to a
pornographic site is not a legitimate or fair use).
Respondent is
not affiliated with Complainant and the evidence fails to establish that the
Respondent is authorized or licensed to register or use domain names or marks
containing the AETNA mark. The WHOIS
for the <aetnaaz.com> domain name reports that Respondent, Andreas
Meier d/b/a toptarget.com BV, is the registrant; however, this fails to
establish that Respondent is an “individual, business, or other organazation”
commonly known by the <aetnaaz.com> domain name. Therefore, Respondent has no rights or
legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie
de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000)
(finding no rights or legitimate interest where Respondent was not commonly
known by the mark and never applied for a license or permission from
Complainant to use the trademarked name); see also MRA Holding, LLC v.
Costnet, FA 140454 (Nat. Arb. Forum Feb. 20, 2003) (noting that “the disputed domain name
does not even correctly spell a cognizable phrase” in finding that Respondent
was not “commonly known by” the name GIRLS GON WILD or <girlsgonwild.com>).
Accordingly, the
Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent
registered the domain name <aetnaaz.com> and linked it to an adult
oriented website. The use of a domain
name confusingly similar to a registered mark to divert Internet traffic to a
website with sexually explicit content is itself evidence of bad faith pursuant
to Policy ¶ 4(a)(iii). See Youtv, Inc. v. Alemdar, FA 94243 (Nat.
Arb. Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users
to his website for commercial gain and linked his website to pornographic
websites); see also Ty, Inc. v.
O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary
evidence, linking the domain names in question to graphic, adult-oriented
websites is evidence of bad faith).
The Panel finds
that Policy ¶ 4(a)(iii) has been established.
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly, it
is Ordered that the <aetnaaz.com> domain name be TRANSFERRED
from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: July 9, 2003.
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