Alltel Corporation v. Alltel
Communications, Inc. c/o Domain Admin
Claim
Number: FA0509000555045
Complainant is Alltel Corporation (“Complainant”),
represented by William Creasman, One Allied Drive, Little Rock, AR
72202. Respondent is Alltel Communications, Inc. c/o Domain Admin (“Respondent”), One Allied Drive, Little Rock, AR
72202.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <alltelcommunications.com>, registered
with Nameview, Inc.
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.
Hon.
Tyrus R. Atkinson, Jr., Esq. as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on September
8, 2005; the National Arbitration Forum received a hard copy of the Complaint
on September 12, 2005.
On
September 14, 2005, Nameview, Inc. confirmed by e-mail to the National
Arbitration Forum that the <alltelcommunications.com> domain name
is registered with Nameview, Inc. and that Respondent is the current registrant
of the name. Nameview, Inc. has
verified that Respondent is bound by the Nameview, 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
September 16, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of October 6, 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@alltelcommunications.com
by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
October 13, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed Tyrus R.
Atkinson, Jr., 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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <alltelcommunications.com>
domain name is confusingly similar to Complainant’s ALLTEL mark.
2. Respondent does not have any rights or
legitimate interests in the <alltelcommunications.com> domain
name.
3. Respondent registered and used the <alltelcommunications.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Alltel Corporation, is a telecommunications service provider offering services
through its operating subsidiary Alltel Communications, Inc. Complainant has registered the ALLTEL mark
(Reg. No. 1,322,561 issued Feb. 26, 1985) with the United States Patent and
Trademark Office (“USPTO”) in connection with these services.
Respondent
registered the <alltelcommunications.com> domain name on November
8, 2004. Respondent’s domain name
resolves to a website featuring links to various competing and non-competing
websites.
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. 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.”).
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 rights in the ALLTEL mark through registration with the USPTO. See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”); see also Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003) (“Complainant's federal trademark registrations establish Complainant's
rights in the BLIZZARD mark.”).
Complainant
contends that Respondent’s <alltelcommunications.com> domain name
is confusingly similar to Complainant’s service mark. Respondent’s domain name features Complainant’s entire ALLTEL
mark and adds the generic term “communications,” a term that describes the
business in which Complainant engages.
The Panel finds that the addition of generic terms, particularly those
that describe Complainant’s business, fail to sufficiently distinguish a
disputed domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell,
AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business); see also
Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000)
(finding that four domain names that added the descriptive words
"fashion" or "cosmetics" after the trademark were
confusingly similar to the trademark).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Complainant has
alleged that Respondent does not have rights or legitimate interests in the <alltelcommunications.com>
domain name. Once Complainant makes a prima
facie case in support of its allegations, the burden shifts to Respondent
to prove that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). Due to Respondent’s failure
to respond to the Complaint, the Panel infers that Respondent does not have
rights or legitimate interests in the disputed domain name. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that, where the complainant has asserted that respondent does not have
rights or legitimate interests with respect to the domain name, it is incumbent
on respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”); see also Clerical Med. Inv.
Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding
that, under certain circumstances, the mere assertion by the complainant that
the respondent does not have rights or legitimate interests is sufficient to
shift the burden of proof to the respondent to demonstrate that such a right or
legitimate interest does exist).
Respondent is
using the confusingly similar <alltelcommunications.com> domain
name to operate a website that features links to various competing and
non-competing websites from which Respondent presumably receives referral
fees. The Panel finds that use of a
confusingly similar domain name to divert Internet users to a website that
provides links to websites not associated with Complainant is neither a bona
fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Golden Bear
Int’l, Inc. v. Kangdeock-ho, FA 190644
(Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly
similar to Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii).”); see also Disney Enters., Inc. v. Dot
Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the
respondent’s diversionary use of the complainant’s mark to attract Internet
users to its own website, which contained a series of hyperlinks to unrelated
websites, was neither a bona fide offering of goods or services nor a
legitimate noncommercial or fair use of the disputed domain names).
Respondent
appears to be commonly known by the <alltelcommunications.com>
domain name through its listing in the relevant WHOIS information. However, no affirmative evidence has been
set forth showing that Respondent was known by this name prior to registration
of the disputed domain name. The Panel
finds that in the absence of such evidence, Respondent has failed to sufficiently
show that it is commonly known as <alltelcommunications.com>
pursuant to Policy ¶ 4(c)(ii). See
Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was
not “commonly known by” the <shantiyogaworks.com> domain name
despite listing its name as “Shanti Yoga Works” in its WHOIS contact
information because there was “no
affirmative evidence before the Panel that the respondent was ever ‘commonly
known by’ the disputed domain name prior to its registration of the disputed
domain name”); see also Nature’s Path Foods Inc. v. Natures
Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact
information, Respondent lists its name and its administrative contact as
‘Natures Path, Inc.’ However, since
Respondent failed to respond to the Complaint, there has not been any
affirmative evidence provided to the Panel showing that Respondent was commonly
known by the disputed domain name prior to its registration of the domain
name.”).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is
using the disputed domain name to operate a website that features links to
various competing and non-competing websites from which Respondent presumably
receives referral fees. The Panel finds
that such diversionary use for Respondent’s own commercial gain is evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated
Newspapers Ltd. v. Domain Manager, FA
201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the
<mailonsunday.com> domain name is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's
competitors and Respondent presumably commercially benefited from the misleading
domain name by receiving ‘click-through-fees.’”); see also Qwest Comm’ns
Int’l Inc. v. Ling Shun Shing, FA 187431 (Nat. Arb. Forum Oct. 6, 2003) (“Respondent
has attempted to commercially benefit from the misleading
<qwestwirless.com> domain name by linking the domain name to adult
oriented websites, gambling websites, and websites in competition with
Complainant. Respondent’s attempt to
commercially benefit from the misleading domain name is evidence of bad faith
pursuant to Policy ¶ 4(b)(iv).”).
Finally,
Respondent registered the <alltelcommunications.com> domain name
with actual or constructive knowledge of Complainant’s rights in the ALLTEL
mark. Complainant’s registration of the
ALLTEL mark with the USPTO confers constructive knowledge of Complainant’s
rights in the mark upon Respondent. See
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 Victoria’s Cyber Secret Ltd. v. V Secret Catalogue, Inc., 161 F.Supp.2d 1339, 1349 (S.D.Fla. 2001) (noting that “a
Principal Register registration [of a trademark or service mark] is
constructive notice of a claim of ownership so as to eliminate any defense of
good faith adoption” pursuant to 15 U.S.C. § 1072). Furthermore, Respondent’s website features links to various
competing and non-competing websites and services. As a result, the Panel infers that Respondent had actual
knowledge of Complainant’s rights in the ALLTEL mark at the time of registration. Registration of a confusingly similar domain name despite actual
or constructive knowledge of Complainant’s rights constitutes bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat.
Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when
Respondent reasonably should have been aware of Complainant’s trademarks,
actually or constructively.”); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr.
17, 2000) (finding that evidence of bad faith includes actual or constructive
knowledge of a commonly known mark at the time of registration); 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.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <alltelcommunications.com> domain name be TRANSFERRED
from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated:
October 25, 2005
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