FMR Corp. v. LaPorte Holdings c/o Admin
Claim Number: FA0504000453838
Complainant is FMR Corp. (“Complainant”), represented
by Sean F. Heneghan, 31 Reading Hill Avenue, Melrose, MA
02176. Respondent is LaPorte Holdings c/o Admin (“Respondent”), 5482 Wilshire Blvd. #1928, Los Angeles, CA
90036.
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain names at issue are <fideelity.com>, <fidielity.com>, <fideliyy.com>, <fidelelity.com>,
<wwwlfidelity.com>, <filelity.com>, <www401kfidelity.com>,
<fidelitynetbenefit.com>, <fidelitybenefits.net>, <fidelitynetbenefits401k.com>,
<401fidelity.com>, <401kfidelity.com>, <fidelty401k.com>,
<fidelitity.com>, <fidelityira.com>, <ebayfidelity.com>,
<accessfidelity.com>, <fidelityadvisorxpress.com>, <fidelityadvisorexpress.com>,
<fidelitypasport.com>, and <eworkplaceservicesfidelity.com>,
registered with Nameking.com, 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.
Louis
E. Condon as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on April
8, 2005; the National Arbitration Forum received a hard copy of the Complaint
on April 11, 2005.
On
April 12, 2005, Nameking.com, Inc. confirmed by e-mail to the National
Arbitration Forum that the domain names <fideelity.com>, <fidielity.com>, <fideliyy.com>,
<fidelelity.com>, <wwwlfidelity.com>, <filelity.com>,
<www401kfidelity.com>, <fidelitynetbenefit.com>, <fidelitybenefits.net>,
<fidelitynetbenefits401k.com>, <401fidelity.com>, <401kfidelity.com>,
<fidelty401k.com>, <fidelitity.com>, <fidelityira.com>,
<ebayfidelity.com>, <accessfidelity.com>, <fidelityadvisorxpress.com>,
<fidelityadvisorexpress.com>, <fidelitypasport.com>, <eworkplaceservicesfidelity.com>
are registered with Nameking.com, Inc. and that Respondent is the current
registrant of the names. Nameking.com, Inc. has verified that Respondent is
bound by the Nameking.com, Inc. registration agreement and has thereby agreed
to resolve domain-name disputes brought by third parties in accordance with
ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On
April 15, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of May 5, 2005
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@fideelity.com, postmaster@fidielity.com, postmaster@fideliyy.com,
postmaster@fidelelity.com, postmaster@wwwlfidelity.com, postmaster@filelity.com,
postmaster@www401kfidelity.com, postmaster@fidelitynetbenefit.com, postmaster@fidelitybenefits.net,
postmaster@fidelitynetbenefits401k.com, postmaster@401fidelity.com, postmaster@401kfidelity.com,
postmaster@fidelty401k.com, postmaster@fidelitity.com, postmaster@fidelityira.com,
postmaster@ebayfidelity.com, postmaster@accessfidelity.com, postmaster@fidelityadvisorxpress.com,
postmaster@fidelityadvisorexpress.com, postmaster@fidelitypasport.com, and postmaster@eworkplaceservicesfidelity.com
by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
May 13, 2005, pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the National Arbitration Forum appointed Louis E. Condon
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.” 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.
Respondent’s
<ebayfidelity.com> domain name incorporates marks owned by
Complainant and eBay Inc., an entity that is not a party in this proceeding.
Due to practical difficulties inherent in the Policy, cooperative complaint
initiation is unlikely and unfeasible. Because Complainant initiated this
dispute before the other interested party, it has the opportunity to acquire
the domain name, while seeking to protect its FIDELITY mark from an infringing
use. However, due to the procedural complexities presented by the current
dispute the following issue must be addressed: that the complainant seeks
acquisition of the subject domain name in good faith, and will forfeit its
interest in the contested domain name if the other represented mark is
infringed upon following a transfer of the domain name registration to the
complainant. See G.D. Searle v. Martin Mktg., FA 118277 (Nat.
Arb. Forum Oct. 1, 2002) (finding that the complainant’s continuing control of
the <viagra-xenical-celebrex-propecia-meridia-zyban.com> domain name was contingent upon good
faith possession, and finding that the complainant would forfeit its interest
in the domain name if it infringed on the other represented marks); see also
G.D. Searle v. Dunham, FA 123901 (Nat. Arb. Forum Oct. 9, 2002).
Complainant avers that eBay Inc. has consented to Complainant’s inclusion of
the <ebayfidelity.com> domain name in its Complaint.
Complainant
requests that the domain names be transferred from Respondent to Complainant.
A.
Complainant makes the following assertions:
1. Respondent’s <fideelity.com>, <fidielity.com>, <fideliyy.com>,
<fidelelity.com>, <wwwlfidelity.com>, <filelity.com>,
<www401kfidelity.com>, <fidelitynetbenefit.com>, <fidelitybenefits.net>,
<fidelitynetbenefits401k.com>, <401fidelity.com>, <401kfidelity.com>,
<fidelty401k.com>, <fidelitity.com>, <fidelityira.com>,
<ebayfidelity.com>, <accessfidelity.com>, <fidelityadvisorxpress.com>,
<fidelityadvisorexpress.com>, <fidelitypasport.com>,
and <eworkplaceservicesfidelity.com> domain names are
confusingly similar to Complainant’s FIDELITY, FIDELITY NETBENEFITS,
EWORKPLACE, PAS, or ADVISORXPRESS marks.
2. Respondent does not have any rights or
legitimate interests in the <fideelity.com>, <fidielity.com>, <fideliyy.com>, <fidelelity.com>,
<wwwlfidelity.com>, <filelity.com>, <www401kfidelity.com>,
<fidelitynetbenefit.com>, <fidelitybenefits.net>, <fidelitynetbenefits401k.com>,
<401fidelity.com>, <401kfidelity.com>, <fidelty401k.com>,
<fidelitity.com>, <fidelityira.com>, <ebayfidelity.com>,
<accessfidelity.com>, <fidelityadvisorxpress.com>, <fidelityadvisorexpress.com>,
<fidelitypasport.com>, and <eworkplaceservicesfidelity.com>
domain names.
3. Respondent registered and used the <fideelity.com>, <fidielity.com>, <fideliyy.com>,
<fidelelity.com>, <wwwlfidelity.com>, <filelity.com>,
<www401kfidelity.com>, <fidelitynetbenefit.com>, <fidelitybenefits.net>,
<fidelitynetbenefits401k.com>, <401fidelity.com>, <401kfidelity.com>,
<fidelty401k.com>, <fidelitity.com>, <fidelityira.com>,
<ebayfidelity.com>, <accessfidelity.com>, <fidelityadvisorxpress.com>,
<fidelityadvisorexpress.com>, <fidelitypasport.com>,
and <eworkplaceservicesfidelity.com> domain names in bad
faith.
B.
Respondent failed to submit a response in this proceeding.
Complainant is
the parent company of one of the world’s largest providers of financial
services, with custodied assets of $2.1 trillion, including managed assets of
$1.1 trillion as of January 31, 2005. Complainant offers financial and other
services to 19 million individuals and institutions. Complainant uses the
FIDELITY, FIDELITY NETBENEFITS, EWORKPLACE, PAS and ADVISORXPRESS marks in
connection with financial services throughout the United States, Canada, and
other countries. The FIDELITY mark has been used in connection with financial
services continuously since 1930. The FIDELITY NETBENEFITS and EWORKPLACE marks
have been used continuously in connection with Complainant’s services since as
early as April 1996. The PAS mark was first used in connection with
Complainant’s investment management services in September 1992. The
ADVISORXPRESS mark was first used in connection with Complainant’s financial
services on October 3, 1997. Complainant spent over $87 million promoting its
products and services offered under its marks in 2004. Complainant owns
trademark registrations on the Principal Register of the United States Patent
and Trademark Office for its marks, including Reg. Nos. 1,543,851 and 2,108,052
for FIDELITY (issued June 13, 1989 and October 28, 1997, respectively), Reg.
No. 2,645,668 for FIDELITY NETBENEFITS (filed December 11, 2001; issued
November 2, 2002), Reg. No. 2,503,244 for EWORKPLACE (issued October 30, 2001),
Reg. No. 2,271,084 for ADVISORXPRESS (issued August 17, 1999), and Reg. No.
2,914,048 for PAS (filed August 11, 1999; issued December 28, 2004).
Complainant also operates a website at the <fidelity.com> domain name
that receives more than three million unique visits per month.
Respondent
registered the disputed domain names between 2002 and 2004. The domain names
redirect Internet users to a pay-per-click search engine at
<domainsponsor.com>. The websites contain pay-per-click links to various
competing financial services and to providers of unrelated goods and services.
Respondent is not licensed or authorized to use any of Complainant’s marks in
any manner.
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.”
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.
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.
Complainant has
established that it has rights in the FIDELITY, FIDELITY NETBENEFITS,
EWORKPLACE, PAS and ADVISORXPRESS marks through registration with the United
States Patent and Trademark Office and through continuous use of the mark in
commerce. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept.
16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that
they are inherently distinctive [or] have acquired secondary meaning.”); see
also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002)
(finding that panel decisions have held that registration of a mark is prima
facie evidence of validity, which creates a rebuttable presumption that the
mark is inherently distinctive, and stating that a respondent has the burden of
refuting this assumption).
The <fideelity.com>,
<fidielity.com>, <fideliyy.com>, <fidelelity.com>,
<fidelitity.com>, <filelity.com>, <fidelity401k.com>,
and <wwwlfidelity.com> domain names are confusingly similar to
Complainant’s FIDELITY mark. The <fidelity401k.com> domain name
incorporates Complainant’s mark and merely adds the common term “401k,” which
is descriptive of products that Complainant offers, and the “.com” generic
top-level domain (“gTLD”) to the mark. The other seven domain names incorporate
common misspellings of Complainant’s mark and the “.com” gTLD. The inclusion of
misspellings of Complainant’s mark, a term that describes Complainant’s
products, and a gTLD do not distinguish the disputed domain names from
Complainant’s mark. See Rollerblade,
Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top
level of the domain name such as “.net” or “.com” does not affect the domain
name for the purpose of determining whether it is identical or confusingly
similar); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing
similarity where the respondent’s domain name combined the complainant’s mark
with a generic term that had an obvious relationship to the complainant’s
business); see also Marie Claire Album v. Blakely,
D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters “www” are not
distinct in the “Internet world” and that the respondent’s
<wwwmarieclaire.com> domain name was confusingly similar to the
complainant’s MARIE CLAIRE trademark); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8,
2000) (finding that the domain names, <davemathewsband.com> and
<davemattewsband.com>, are common misspellings and therefore confusingly
similar).
The <fidelitynetbenefit.com>
and <fidelitybenefits.net> domain names are confusingly similar to
Complainant’s FIDELITY NETBENEFITS mark. The domain names incorporate the mark
while simply removing the letter “s” or the term “net” and adding a gTLD. The
removal of an “s” or the term “net” from the mark and the addition of a gTLD do
not distinguish the domain names from Complainant’s mark. See Universal City Studios, Inc. v.
HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the
letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change
the overall impression of the mark and made the disputed domain name
confusingly similar to the mark); see also Hammond Suddards Edge v. Westwood Guardian Ltd., D2000-1235 (WIPO
Nov. 6, 2000) (finding that the domain name, “hammondsuddards.net,” is
essentially identical to the complainant’s mark, Hammond Suddards Edge, where
the name “Hammond Suddards” identifies the complainant independently of the
word “Edge”).
The <fidelityadvisorxpress.com>,
<fidelityadvisorexpress.com>, <eworkplaceservicesfidelity.com>,
<fidelitypasport.com>, and <ebayfidelity.com> domain
names are confusingly similar to Complainant’s marks because they merely
combine Complainant’s FIDELITY mark with the ADVISORXPRESS, EWORKPLACE, PAS, or
EBAY marks and add the generic terms “services” or “port” or the letter “e” and
a gTLD. The combination of two marks and the addition of a generic term or
letter and a gTLD to the combination do not distinguish the domain names from
Complainant’s marks. See Nintendo
of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing
similarity where respondent combined the complainant’s POKEMON and PIKACHU
marks to form the <pokemonpikachu.com> domain name); see also G.D.
Searle & Co. v. Paramount Mktg., FA 118307 (Nat. Arb. Forum Sept. 27,
2002) (holding that the addition of other well-known pharmaceutical drug brand
names to the <viagra-xenical-propecia-meridia-bontril-phentermine-celebrex.com> domain name did not diminish the
capacity of the disputed domain name to confuse Internet users, but actually
added to the potential to confuse); see also Body Shop Int’l PLC v. CPIC NET, D2000-1214 (WIPO Nov. 26, 2000)
(finding that the <bodyshopdigital.com> domain name was confusingly
similar to the complainant’s THE BODY SHOP trademark); see also Victoria’s Secret v. Zuccarini, FA 95762
(Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding
letters to words, the respondent did not create a distinct mark but
nevertheless rendered the domain name confusingly similar to the complainant’s marks).
The <401kfidelity.com>,
<401fidelity.com>, <www401kfidelity.com>, <fidelityira.com>,
<accessfidelity.com>, and <fidelitynetbenefits401k.com>
domain names are confusingly similar to Complainant’s marks because they
incorporate one or more of the marks and merely add the common or descriptive
terms “401k,” “401,” “www401k,” “ira,” “www,” and “access” and a gTLD to the
marks. The addition of common or descriptive terms and a gTLD to one or more of
Complainant’s marks does not distinguish the domain names from the marks. See
G.D. Searle & Co. v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002)
(finding that the addition of other drug names did not create a distinct mark
capable of overcoming a claim of confusing similarity; “it merely creates a
domain name with severe potential to confuse Internet users as to the source,
sponsorship and affiliation of the domain”); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the
<hoylecasino.net> domain name was confusingly similar to the
complainant’s HOYLE mark, and that the addition of “casino,” a generic word
describing the type of business in which the complainant was engaged, did not
take the disputed domain name out of the realm of confusing similarity); see
also Marriott Int’l, Inc. v.
Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the
respondent’s domain name <marriott-hotel.com> was confusingly similar to
the complainant’s MARRIOTT mark).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Respondent has
failed to submit a response in this proceeding. In the absence of a response,
the Panel accepts as true all reasonable allegations contained in the Complaint
unless clearly contradicted by the evidence. Complainant alleges that
Respondent lacks rights and legitimate interests in the disputed domain names. Neither Respondent nor the evidence
contradicts this allegation. Furthermore, because Respondent failed to submit a
response, Respondent has not proposed any set of circumstances that could
substantiate its rights or legitimate interests in the domain names under
Policy ¶ 4(a)(ii). See Vertical Solutions Mgmt., Inc. v. webnet-marketing,
inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s
failure to respond allows all reasonable inferences of fact in the allegations
of a complaint to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000)
(finding that failing to respond allows a presumption that a complainant’s
allegations are true unless clearly contradicted by the evidence); see also Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent failed to invoke any circumstance which could demonstrate any rights
or legitimate interests in the domain name).
Respondent is
not using the disputed domain names in connection with a bona fide offering of
goods or services under Policy ¶ 4(c)(i) or making a legitimate noncommercial
or fair use of the domain names pursuant to Policy ¶ 4(c)(iii) because the
domain names are confusingly similar to Complainant’s marks and divert Internet
users to competing and unrelated commercial websites. The Panel infers that
Respondent receives pay-per-click fees when Internet users follow the links on
its websites. Respondent makes opportunistic use of Complainant’s marks in
order to capitalize on the goodwill associated with the marks. See Yahoo!
Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that
the respondent’s use of a confusingly similar domain name to operate a
pay-per-click search engine, in competition with the complainant, was not a
bona fide offering of goods or services); see also Computerized Sec. Sys.,
Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that the
respondent’s appropriation of the complainant’s mark to market products that
compete with the complainant’s goods does not constitute a bona fide offering
of goods and services); see also Winmark Corp. v. In The Zone, FA 128652
(Nat. Arb. Forum Dec. 6, 2002) (finding that the respondent had no rights or
legitimate interests in a domain name that used the complainant’s mark to
redirect Internet users to a competitor’s website).
No evidence
before the Panel suggests that Respondent is commonly known by the disputed domain names. The domain
names’ WHOIS information indicates that the registrant of the disputed domain
names is known as “LaPorte Holdings c/o Admin” and is not known by any of the
confusingly similar second-level domains that infringe on Complainant’s marks.
Moreover, Respondent is not licensed to use Complainant’s marks. Thus,
Respondent lacks rights and legitimate interests in the domain names under
Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in the respondent’s WHOIS
information implies that the respondent is ‘commonly known by’ the disputed
domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not
apply); see also RMO,
Inc. v. Burbridge, FA
96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) “to
require a showing that one has been commonly known by the domain name prior to
registration of the domain name to prevail”); see also Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests
where the respondent was not commonly known by the mark and never applied for a
license or permission from the complainant to use the trademarked name).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses
confusingly similar variations of Complainant’s marks in its domain names to
ensnare unsuspecting Internet users. Respondent then redirects the users to
websites that link to various providers of financial services and other
commercial websites. The Panel infers that Respondent receives pay-per-click
fees when Internet users follow the links on its websites. Thus, Respondent is
profiting from the unauthorized use of Complainant’s registered marks in its
domain names. Such infringement is evidence of bad faith registration and use
under Policy ¶ 4(b)(iv). See Drs.
Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where the respondent directed Internet users seeking the
complainant’s site to its own website for commercial gain); see also Kmart
v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if a
respondent profits from its diversionary use of the complainant’s mark when the
domain name resolves to commercial websites and the respondent fails to contest
the complaint, it may be concluded that the respondent is using the domain name
in bad faith pursuant to Policy ¶ 4(b)(iv)).
The disputed
domain names, which are confusingly similar to Complainant’s registered marks,
resolve to websites that provide links to websites that offer services that
compete with Complainant. Respondent’s use of the disputed domain names
establishes that Respondent registered and used the domain names for the
purpose of disrupting the business of a competitor, which evidences bad faith
registration and use under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad
faith by attracting Internet users to a website that competed with the
complainant’s business); see also Puckett
v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent
diverted business from the complainant to a competitor’s website in violation
of Policy ¶ 4(b)(iii)).
Furthermore,
while each of the four circumstances listed under Policy ¶ 4(b), if proven,
evidences bad faith use and registration of the domain names, additional
factors can also be used to support findings of bad faith. See Twentieth Century Fox Film Corp. v. Risser,
FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a
domain name has been registered in bad faith, the Panel must look at the
“totality of circumstances”); see also Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph
4(b) are intended to be illustrative, rather than exclusive.”).
Respondent’s
registration of the disputed domain names, which are confusingly similar to
Complainant’s marks, suggests that Respondent knew of Complainant’s rights in
the FIDELITY, FIDELITY NETBENEFITS, EWORKPLACE, ADVISORXPRESS, and PAS marks.
Additionally, Complainant’s trademark registrations on the Principal Register
of the United States Patent and Trademark Office gave Respondent constructive
notice of Complainant’s marks. Moreover, the fact that Respondent’s websites
promote services that compete with Complainant’s services evidences
Respondent’s knowledge of Complainant’s rights in the marks. Thus, the Panel
finds that Respondent chose the disputed domain names based on the distinctive
qualities of Complainant’s marks, which evidences bad faith registration and
use under Policy ¶ 4(a)(iii). See Sony
Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad
faith registration and use where it was “inconceivable that the respondent
could make any active use of the disputed domain names without creating a false
impression of association with the complainant”); see also Digi Int’l v. DDI
Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal
presumption of bad faith, when the respondent reasonably should have been aware
of the complainant’s trademarks, actually or constructively.”); see also
Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002)
(“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO,
a status that confers constructive notice on those seeking to register or use
the mark or any confusingly similar variation thereof.”); see also Pfizer,
Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the
link between the complainant’s mark and the content advertised on the
respondent’s website was obvious, the respondent “must have known about the
complainant’s mark when it registered the subject domain name”).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Complainant
having established all three elements required under the ICANN Policy, the
Panel concludes that relief should be GRANTED.
Accordingly, it
is Ordered that the <fideelity.com>, <fidielity.com>, <fideliyy.com>, <fidelelity.com>,
<wwwlfidelity.com>, <filelity.com>, <www401kfidelity.com>,
<fidelitynetbenefit.com>, <fidelitybenefits.net>, <fidelitynetbenefits401k.com>,
<401fidelity.com>, <401kfidelity.com>, <fidelty401k.com>,
<fidelitity.com>, <fidelityira.com>, <ebayfidelity.com>,
<accessfidelity.com>, <fidelityadvisorxpress.com>, <fidelityadvisorexpress.com>,
<fidelitypasport.com>, and <eworkplaceservicesfidelity.com>
domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: May 26, 2005
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