Alltel Corporation v. Jeremy Schoemaker c/o ShoeMoney Media Group
Claim Number: FA0510000572945
Complainant is Alltel Corporation (“Complainant”), represented by William Creasman, One Allied Drive B1F6-B, Little Rock, AR 72202. Respondent is Jeremy Schoemaker c/o ShoeMoney Media Group (“Respondent”), P.O. Box 6703, Omaha, NE 68106-0703.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <free-alltel-ringtones.com> and <alltel-ringtones.com>, registered with Go Daddy Software, 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 6, 2005; the National Arbitration Forum received a hard copy of the Complaint on October 11, 2005.
On October 6, 2005, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <free-alltel-ringtones.com> and <alltel-ringtones.com> domain names are registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the names. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 October 19, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of Novmeber 8, 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@free-alltel-ringtones.com and postmaster@alltel-ringtones.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 15, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <free-alltel-ringtones.com> and <alltel-ringtones.com> domain names are confusingly similar to Complainant’s ALLTEL mark.
2. Respondent does not have any rights or legitimate interests in the <free-alltel-ringtones.com> and <alltel-ringtones.com> domain names.
3. Respondent registered and used the <free-alltel-ringtones.com> and <alltel-ringtones.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alltel Corporation, has been using the ALLTEL mark to promote its communication services in the United States and to promote information services in over fifty countries worldwide since as early as 1983. Complainant also holds registration rights for the ALLTEL mark through registration with the United States Patent and Trademark Office (Reg. No. 1,322,561, issued February 26, 1985).
Respondent registered the <free-alltel-ringtones.com> and <alltel-ringtones.com> domain names on August 31, 2004. Respondent is using the disputed domain names to redirect Internet users to Respondent’s search engine website. Respondent’s website contains links to various topics associated with Complainant’s business, including competing cell phone service and cell phone providers.
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 offered evidence of its trademark
registration to demonstrate rights in the ALLTEL mark. The Panel accepts this evidence to
demonstrate that Complainant’s has rights in the ALLTEL mark pursuant to Policy
¶ 4(a)(i). 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.”).
The disputed domain names merely add the words “free,” “ringtones,” and hypens, which do not significantly distinguish the domain names from the mark. The Panel finds that the <free-alltel-ringtones.com> and <alltel-ringtones.com> domain names are confusingly similar to the ALLTEL mark. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporates the VIAGRA mark in its entirety, and deviates only by the addition of the word “bomb,” the domain name is rendered confusingly similar to the complainant’s mark); Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is 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 is engaged, does not take the disputed domain name out of the realm of confusing similarity); Easyjet Airline Co. Ltd. v. Harding, D2000-0398 (WIPO June 22, 2000) (finding it obvious that the domain name <easy-jet.net> was virtually identical to the complainant's EASYJET mark and therefore that they are confusingly similar)
The Panel finds that Complainant has established Policy ¶ 4(a)(i).
Respondent is appropriating Complainant’s mark to refer
Internet traffic to sites that compete with Complainant. The Panel finds that Respondent is not using
the disputed domain names for a bona fide offering of a good or service
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii). 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 Or.
State Bar v. A Special Day, Inc., FA 99657
(Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and
sale of law-related books under Complainant's name is not a bona fide offering
of goods and services because Respondent is using a mark confusingly similar to
the Complainant's to sell competing goods.”).
There is nothing in the record, including the WHOIS
registration information, that indicates that Respondent is commonly known by
the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); Gallup, Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not
have rights in a domain name when the respondent is not known by the mark).
The Panel finds that Complainant has established Policy ¶ 4(a)(ii).
The Panel infers that Respondent receives click-through fees
for referring traffic. Therefore,
Respondent is appropriating Complainant’s mark in confusingly similar domain
names for commercial gain, which is evidence of bad faith pursuant to Policy ¶
4(b)(iv). See Identigene, Inc. v. Genetest Labs.,
D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use
of the domain name at issue to resolve to a website where similar services are
offered to Internet users is likely to confuse the user into believing that the
complainant is the source of or is sponsoring the services offered at the
site); Luck's Music Library v. Stellar
Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the
respondent engaged in bad faith use and registration by using domain names that
were identical or confusingly similar to the complainant’s mark to redirect
users to a website that offered services similar to those offered by the
complainant).
Additionally, Respondent is appropriating Complainant’s mark
to refer Complainant’s customers to competitors’ websites, which is bad faith
pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”); 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 competes with the complainant’s business).
The Panel finds that Complainant has established Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <free-alltel-ringtones.com> and <alltel-ringtones.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: November 29, 2005
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