Association for Supervision and Curriculum Development d/b/a ASCD v. Domain Admin / Private Registrations Aktien Gesellschaft
Claim Number: FA1501001600062
Complainant is Association for Supervision and Curriculum Development d/b/a ASCD (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Domain Admin / Private Registrations Aktien Gesellschaft (“Respondent”), St. Vincent and the Grenadines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwascd.org> ('the Domain Name'), registered with PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR).
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 15, 2015; the National Arbitration Forum received payment on January 21, 2015.
On January 17, 2015, PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) confirmed by e-mail to the National Arbitration Forum that the <wwwascd.org> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) 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 January 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 2015 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@wwwascd.org. Also on January 21, 2015, 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 February 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Dawn Osborne 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's submissions can be summarized as follows:
Founded in 1943 the Complainant is a membership based, not for profit organisation offering education related services. It owns, inter alia registered trade marks in the USA for ASCD and the ASCD logo.
The Domain Name is confusingly similar to the Complainant’s registered ASCD marks which are world famous and arbitrary, only used as a brand name, such that searchers will almost certainly be confused into thinking there is a connection of source, sponsorship, affiliation or endorsement between Complainant and Respondent due to use by the Respondent of the Domain Name.
The Respondent in this dispute merely precedes the ASCD Mark with the letters "www" and then adds the .org gTLD as a suffix, mimicking the Complainant’s official www.ASCD.org web site and, thereby, making visitors to it think that they are being linked to one of the Complainant's legitimate sites. Adding a generic term to a Complainant’s trade mark creates a confusingly similar domain name. A generic top level domain is typically not considered when examining whether a domain is confusingly similar to a complainant's trade mark.
Respondent has no rights or legitimate interests in the Domain Name. Respondent's actions are not a bona fide offering of goods or services. Respondent's web site is a classic pay per click site displaying links which divert visitors, likely Complainant's customers and potential customers, to other web sites not associated with the Complainant and in some case associated with the Complainant’s competitors. Respondent is not commonly known by the Domain Name, does not operate a business under the ASCD name and does not own any trademark rights in the same. Respondent is not making a legitimate non-commercial or fair use of the Domain Name. Instead the Respondent is using the Domain Name to confuse and misleadingly divert consumers or to tarnish the Complainant’s marks.
The Respondent registered and used the Domain Name in bad faith. It has intentionally attempted to attract, by using the Domain Name for a pay per click site for commercial gain, Internet users to its web site or other on line location by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation or endorsement of the web site or location or of a product or service on the web site or location. Respondent knowingly and intentionally used the Complainant’s marks with knowledge of the Complainant's rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Founded in 1943 the Complainant is a membership based, not for profit organisation offering education related services. It owns inter alia registered trademarks in the USA for ASCD and the ASCD logo.
The Domain Name, first registered in 2005, has been used for a site bearing pay per click links pointing to educational services not connected to the 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."
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 Complainant has registered rights in the ASCD mark for education related services in the USA. The Domain Name consists of the Complainant's mark ASCD with the prefix www and gTLD .org. The addition of the generic term 'www' indicating World Wide Web and a gTLD does not serve to distinguish the Domain Name from the Complainant's mark. See Neiman Marcus Group. Inc. v S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (Holding confusing similarity has been established because the prefix 'www' and suffix gTLD do not sufficiently differentiate the wwwneimanmarcus.com domain name from the Complainants NEIMAN-MARCUS mark.) As such, the Panel also holds that the Domain Name is identical for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Complainant points out that Respondent is not commonly known by the Domain Name and does not own any trademark rights in it. The Domain Name has been used to link to a pay-per-click website incorporating a generic search engine and links to other third party commercial web sites related to education, but unconnected with the Complainant.. The Panel notes Disney Enters. Inc. v Dot Stop FA 145227 (Nat Arb. Forum Mar 17 2003) (where the Panel concluded that the respondent's diversionary use of the complainant's mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites was neither a bona fide offering of goods and services nor a legitimate non-commercial or fair use of the disputed domain names.) The Panel thus concludes that there is no rights or legitimate interests in the Domain Name under para 4 (c) (i) or (iii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwascd.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 17, 2015
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