Baylor University v. Andy Owens c/o 1800DIALWORD.COM
Claim Number: FA1509001638378
Complainant is Baylor University (“Complainant”), represented by Travis R. Wimberly, Texas, USA. Respondent is Andy Owens c/o 1800DIALWORD.COM (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <1800baylorcare.com>, registered with eNom, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 17, 2015; the Forum received payment on September 17, 2015.
On September 18, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <1800baylorcare.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 September 22, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 13, 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@1800baylorcare.com. Also on September 22, 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 Forum transmitted to the parties a Notification of Respondent Default.
On October 15, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
1. Complainant uses the BAYLOR mark in connection with its business as the oldest continually operating institution of higher learning in Texas and as the largest Baptist university in the world. Complainant owns the BAYLOR mark through its numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,465,910, registered November 17, 1987).
2. The disputed domain name is confusingly similar to the BAYLOR mark, as the disputed domain name merely adds the numbers “1800” and the generic term “care,” along with the generic top-level domain (“gTLD”) “.com.”
3. Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Respondent is not commonly known by the disputed domain name, as demonstrated by the available WHOIS information for the disputed domain name.
4. Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Rather, Respondent uses the disputed domain name to display links to third-party websites, which appear to be related to Complainant, but ultimately are unrelated.
5. Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(ii). First, Respondent attempted to sell the disputed domain name to Complainant in excess of its out-of-pocket costs. Additionally, Respondent uses the disputed domain name to display pay-per-click links that appear to be associated with Complainant, but ultimately resolve to unrelated websites.
6. Finally, Respondent had actual knowledge of Complainant and its rights in the BAYLOR mark when registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Respondent has consented to the transfer of the domain name to 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.”).
Preliminary Issue: Consent to Transfer
The National Arbitration Forum received the following communication from Respondent which is identified in this proceeding as “Other Correspondence.” In this communication, Respondent purports to consent to the transfer of the domain name. Respondent states as follows:
Hello, we’re happy to release or delete the domain, but I’ve asked their attorney with no response, so not sure how to proceed.
Because Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of the <1800baylorcare.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
The Respondent having consented to the transfer of the <1800baylorcare.com> domain name, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <1800baylorcare.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: October 26, 2015
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