American Council on Education and GED Testing Service LLC v. WEB TECH
Claim Number: FA1612001707283
Complainants are American Council on Education and GED Testing Service LLC ("Complainants"), represented by Patrick J. Gallagher of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is WEB TECH ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gedoptions.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.
David E. Sorkin as Panelist.
Complainants submitted a Complaint to the Forum electronically on December 13, 2016; the Forum received payment on December 13, 2016.
On December 14, 2016, eNom, Inc. confirmed by email to the Forum that the <gedoptions.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 December 19, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2017 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@gedoptions.com. Also on December 19, 2016, the Written Notice of the Complaint, notifying Respondent of the email 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 January 20, 2017, pursuant to Complainants' request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
Complainants request that the domain name be transferred from Respondent to Complainants.
A. Complainants
Complainant American Council on Education (ACE) is a higher education organization and the owner of trademark rights in GED and various related marks, used in connection with a standardized high school equivalency test. Complainant GED Testing Service LLC, a former division of ACE, administers the GED test under an exclusive license from ACE. The GED test was originally developed for veterans returning from service in World War II, and was first made available to civilians in 1947. GED and related marks are the subjects of numerous trademark registrations in the United States and other jurisdictions worldwide. More than 848,000 adults worldwide took a GED test in 2013, and approximately 20 million people have passed the test since its creation.
Respondent is the current registrant of the disputed domain name <gedoptions.com>, which was originally registered in 2005 and was held in the name of a privacy service immediately prior to the filing of the Complaint in this proceeding. The domain name resolves to a website comprised of pay-per-click links to products and services that compete directly with those offered by Complainants. Complainants state that Respondent has no relationship, connection, endorsement, or association with either Complainant; that Respondent is not an authorized provider of the GED test; and that Respondent has never been commonly known by the disputed domain name or the GED mark. Complainants allege that the content of the website shows that Respondent knew of the mark and intended to profit by attracting and diverting consumers seeking information about Complainants.
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 Complainants have rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being 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 a 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 Complainants' undisputed representations pursuant to paragraphs 5(f), 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 (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 <gedoptions.com> combines Complainant ACE's registered GED mark with the generic term "options" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark for purposes of the Policy. See, e.g., American Council on Education & GED Testing Service LLC v. Domain Hostmaster / Protopixel Pty Ltd, FA 1701858 (Forum Dec. 22, 2016) (finding <freeged.com> confusingly similar to GED); American Council on Education & GED Testing Service LLC v. Domain Admin / Whois protection, this company does not own this domain name s.r.o., FA 1696119 (Forum Nov. 15, 2016) (finding <gedtesting.com> confusingly similar to GED); Inter IKEA Systems B.V. v. Marc Gray, Flatpackfurniture Delivery & Assembly, D2014-0281 (WIPO Apr. 23, 2014) (finding <ikeadeliveryoptions.com> confusingly similar to IKEA); Lilly ICOS LLC v. Tudor Burden d/b/a BM Marketing/Burden Marketing, D2005-0313 (WIPO June 21, 2005) (finding <cialis-option.com> confusingly similar to CIALIS); State Farm Mutual Automobile Insurance Co. v. Kirilly Tipping, FA 632714 (Forum Mar. 2, 2006) (finding <state-farm-options.info> confusingly similar to STATE FARM). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainants have rights.
Under the Policy, Complainants must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant ACE's registered mark without authorization, and its sole apparent use has been for a website comprised of pay-per-click links to Complainants' competitors. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., American Council on Education & GED Testing Service LLC v. Domain Hostmaster / Protopixel Pty Ltd, supra; American Council on Education & GED Testing Service LLC v. Domain Admin / Whois protection, this company does not own this domain name s.r.o., supra.
Complainants have made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainants have sustained their burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainants must show that the disputed domain name was registered and is being 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 and use of a domain name incorporating Complainants' mark to display links to competing products and services, presumably for commercial gain, is indicative of bad faith under these provisions of the Policy. See, e.g., American Council on Education & GED Testing Service LLC v. Domain Hostmaster / Protopixel Pty Ltd, supra; American Council on Education & GED Testing Service LLC v. Domain Admin / Whois protection, this company does not own this domain name s.r.o., supra. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gedoptions.com> domain name be TRANSFERRED from Respondent to Complainants.
David E. Sorkin, Panelist
Dated: January 20, 2017
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