DECISION

 

Asbury Communities, Inc. v. Tiffany Hedges

Claim Number: FA1805001785054

PARTIES

Complainant is Asbury Communities, Inc. (“Complainant”), represented by Sarah Anne Keefe of Womble Bond Dickinson, Massachusetts, USA.  Respondent is Tiffany Hedges (“Respondent”), British Columbia, Canada.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <asburymethodistvillage.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

Darryl C. Wilson, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on May 4, 2018; the Forum received payment on May 4, 2018.

 

On May 7, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <asburymethodistvillage.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name.  GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 May 10, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 30, 2018 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@asburymethodistvillage.com.  Also on May 10, 2018, 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 June 4, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, Asbury Communities, Inc., is a 90-year-old not-for-profit organization that provides retirement communities and home care services for older adults. Complainant has rights in the ASBURY METHODIST VILLAGE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,238,255, registered Apr. 13, 1999). Complainant alleges Respondent’s <asburymethodistvillage.com> domain name is confusingly similar to Complainant’s ASBURY METHODIST VILLAGE mark because it contains the mark in its entirety and adds the generic top-level domain (“gTLD”) “.com.”

 

Respondent does not have any rights or legitimate interests in the <asburymethodistvillage.com> domain name. Respondent is not commonly known by the name and Complainant has not given Respondent license to use the ASBURY METHODIST VILLAGE mark. Additionally, Respondent has not used the domain name for a bona fide offering of goods or services or for legitimate noncommercial or fair use. Instead, Respondent uses the domain name to host dynamic parking pages in order to derive click through revenue.

 

Respondent has registered and used the <asburymethodistvillage.com> domain name in bad faith. Respondent is attempting to attract confused users to its site to commercially gain through malware installations and click-through revenue. (attempted malware installation). Furthermore, Respondent engages in typosquatting by substituting Complainant’s “.org” gTLD for the “.org” gTLD. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the mark due to Complainant’s active use of the mark before Respondent’s registration of the disputed domain name.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant is Asbury Communities, Inc., of Frederick, MD, USA. Complainant is the owner of domestic registrations for the mark ASBURY METHODIST VILLAGE, in various forms and styles, which it has continuously used since at least as early as 1999, in connection with its provision of retirement homes, assisted living facilities, nursing care and medical services. Complainant is also the owner of the domain name <asburymethodistvillage.org> which it has been continuously using for its web presence since 2001.

 

Respondent is Tiffany Hedges of Vancouver, British Columbia, Canada. Respondent’s registrar’s address is listed as Scottsdale, AZ. USA. The Panel notes that Respondent registered the disputed domain name on or about October 25, 2005.

 

DISCUSSION

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(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.”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the ASBURY METHODIST VILLAGE mark through registration with the USPTO (e.g., Reg. No. 2,238,255, registered Apr. 13, 1999). Registration of a mark with the USPTO is sufficient to establish complainant’s rights in the mark. See Advance Auto Parts, Inc. d/b/a Advance Auto Innovations, LLC v. Privacy Ltd. Disclosed Agent for YOLAPT / Domain Admin, FA 1625582 (Forum July 23, 2015) (holding that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i), even though Respondent reportedly resides in the Isle of Man). The Panel here finds that Complainant has established rights in the ASBURY METHODIST VILLAGE mark for the purposes of Policy ¶ 4(a)(i).

 

Complainant alleges Respondents <asburymethodistvillage.com> domain name is confusingly similar to Complainant’s ASBURY METHODIST VILLAGE mark because it contains the mark in its entirety and adds the gTLD “.com.” The addition of a gTLD is not sufficient to differentiate a domain name that is identical to a complainant’s mark. See Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark.  The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”). The Panel here finds that the <asburymethodistvillage.com> domain name is identical to the ASBURY METHODIST VILLAGE mark under a Policy ¶ 4(a)(i) analysis.

 

Respondent raises no contentions with regards to Policy ¶ 4(a)(i).

 

The Complainant has proven this element.

 

Rights or Legitimate Interests

The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant here has set forth the requisite prima facie case.

 

Complainant alleges that Respondent has no rights or legitimate interests in the <asburymethodistvillage.com> domain name because Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the ASBURY METHODIST VILLAGE mark. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights and legitimate interests in the domain name. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug, 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). Under ¶ 4(c)(ii), WHOIS information can be used to support a finding that the Respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The Panel notes that WHOIS information identifies the registrant as “Tiffany Hedges.” Accordingly, the Panel here finds that Respondent is not commonly known by the <asburymethodistvillage.com> domain name under Policy ¶ 4(c)(ii).

 

Complainant further argues that Respondent lacks rights and legitimate interests in the <asburymethodistvillage.com> domain name because Respondent failed to use the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant alleges that Respondent uses the domain name to confuse internet users and lead them to dynamic parked pages from which Respondent derives click through revenue. Use of a domain name to host pay-per-click services generally does not confer rights in a domain name to a respondent. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Complainant does not provide any evidence of the alleged parked webpage, however does provide a screenshot of an attempted malware installation when trying to access the domain name. The Panel here finds that Respondent failed to use the <asburymethodistvillage.com> domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use under Policy ¶¶ 4(c)(i) or (iii).

 

Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).

 

The Complainant has proven this element.

 

Registration and Use in Bad Faith

Complainant argues Respondent has registered and used the <asburymethodistvillage.com> domain name in bad faith because Respondent uses the disputed domain name to create confusion with Complainant’s ASBURY METHODIST VILLAGE mark in order to attract users for commercial benefit. Use of a domain name to create confusion as to the source, sponsorship, affiliation or endorsement therein for commercial gain may evidence bad faith per Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). The Panel here finds that Respondent has engaged in bad faith registration and use of the <asburymethodistvillage.com> domain name per Policy ¶ 4(b)(iv).

 

Complainant further alleges Respondent uses the <asburymethodistvillage.com> domain name to redirect users to a website that attempts to install malware software on the user’s computer. Use of a domain name to install malicious software on an internet users computer may be evidence of bad faith under Policy ¶ 4(a)(iii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”). Complainant alleges that Respondents <asburymethodistvillage.com> domain name resolves to a third party website that attempts to install malware on the users’ computer, and provides a screenshot to further this assertion. The Panel here finds that Respondent actions further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)

 

Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).

 

The Complainant has proven this element.

 

DECISION

As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.

 

Accordingly, it is Ordered that the <asburymethodistvillage.com> domain name be TRANSFERRED from Respondent to Complainant.

 

                                       Darryl C. Wilson, Panelist

                                         Dated: June 18, 2018

 

 

 

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