President and Fellows of Harvard College v. Mathew hoss
Claim Number: FA1708001746089
Complainant is President and Fellows of Harvard College (“Complainant”), represented by Andrew J. Avsec of Brinks Hofer Gilson & Lione, Illinois, USA. Respondent is Mathew hoss (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <harvardcert.us>, registered with Realtime Register B.V.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 24, 2017; the Forum received payment on August 24, 2017.
On August 30, 2017, Realtime Register B.V. confirmed by e-mail to the Forum that the <harvardcert.us> domain name is registered with Realtime Register B.V. and that Respondent is the current registrant of the name. Realtime Register B.V. has verified that Respondent is bound by the Realtime Register B.V. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On August 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 19, 2017 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@harvardcert.us. Also on August 30, 2017, 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 September 23, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 usTLD 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 usTLD Policy, usTLD 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
Complainant is a charitable and educational corporation at Harvard University and operates out of Massachusetts, USA. Complainant has registered the HARVARD mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,608,533, registered July 31, 1990). See Compl., Attached Annex L. Respondent’s <harvardcert.us> is confusingly similar to the HARVARD mark because it incorporates the mark in its entirety, adds a generic term “cert” (possibly an abbreviation for “certificate” or “certification”), and the “.us” country code top level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the HARVARD mark. Respondent has not made a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name. Instead, Respondent offers a website through the domain name which is entirely unrelated to Complainant, but which predominantly features Complainant’s mark, causing confusion.
Respondent registered or is using the disputed domain name in bad faith. Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. Respondent has caused confusion among Internet users concerning Complainant’s business by appearing to be associated with Complainant—presumably for its own commercial gain. Respondent has also provided a false address further which constitutes bad faith. See Compl., at Attached Annex B (1113 West Street, MI, 49504—an address Complainant alleges does not exist).
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was first registered on June 1, 2014.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon DRP precedent as applicable in rendering its decision.
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(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 Panel finds that the disputed domain name, <harvardcert.us>, is confusingly similar to Complainant’s valid and subsisting trademark, HARVARD. Complainant has adequately pled its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely adding the letters “cert” and appending the cc Top Level Domain name “.us.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no license or permission to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Respondent also has not made a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name. Complainant argues that Respondent’s use of the HARVARD mark only exacerbates the confusion users may find when visiting Respondent’s sites. The color scheme and shield shown on the disputed domain name resemble Complainant’s organization, which creates further confusion for users. See Compl., at Attached Annex O. Complainant further argues Respondent uses the HARVARD mark and purports to advertise certification services for ISO International Standards, which are unrelated to Complainant. See Compl., at Attached Annex P.
The Panel, therefore, finds that Respondent has failed to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name and, as such, the Panel finds that Complainant has satisfied Policy ¶¶ 4(c)(ii) and (iv).
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Apparently, Respondent has attempted to create a false sense of association between Complainant and Respondent by displaying the HARVARD mark and logo. See Compl., at Attached Annex O. Complainant argues that displaying the actual mark and logo associated with the mark on the disputed domain page constitutes bad faith. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”) The Panel finds that the impression that Respondent is sponsored by, affiliated with, or endorsed by Complainant, coupled with the purported offering of educational services (e.g., a non-functioning hyperlink titled, “Academy”), indicates that Respondent has presumably attempted to commercially gain from its use of the domain name in this manner, and as such Complainant has satisfied Policy ¶ 4(b)(iv).
Next, Complainant asserts Respondent had actual knowledge of the HARVARD mark. Complainant’s argues the HARVARD mark is universally famous and it is inconceivable Respondent had no notice of the mark. The Panel finds that given the HARVARD mark is famous, coupled with Respondent’s use, the Respondent had actual notice of the mark. As such, the Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Lastly, Complainant asserts Respondent provided false WHOIS information. A respondent’s demonstrated provision of falsified WHOIS information may be considered bad faith under nonexclusive Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”). Complainant contends Respondent’s listed address at 1113 West Street, MI, Michigan 49504 is false as there is no such address in Grand Rapids, MI associated with that zip code. Complainant has not provided documentary evidence of this fact; however, it is difficult to disprove a negative. As such, the Panel finds that Respondent has falsified its WHOIS information, further bearing on its bad faith under Policy ¶ 4(a)(iii).
Therefore, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <harvardcert.us> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: September 25, 2017
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