Alltel Corporation v. Dan Brown c/o Make Purchase Offers To: mainstreet@gmail.com
Claim Number: FA0510000572948
Complainant is Alltel Corporation (“Complainant”), represented by William Creasman, of Alltel Corporation One Allied Drive B1F6-B, Little Rock, AR 72202. Respondent is Dan Brown c/o Make Purchase Offers To: mainstreet@gmail.com (“Respondent”), 2005 Palo Verde #328, Long Beach, CA 90815.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allteltv.com>, registered with Enom, 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.
Terry F. Peppard 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, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <allteltv.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 18, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 7, 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@allteltv.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 16, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard 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:
Complainant, Alltel Corporation, offers telecommunications services to customers through its operating subsidiary, Alltel Communications, Inc.
Complainant registered the ALLTEL service mark with the United States Patent and Trademark Office (“USPTO”) in connection with these services in 1985.
Complainant owns a subsidiary, Teleview, Inc., which is a cable television operator.
Complainant also provides wireless, wireline and DSL services to its customers.
Complainant is now developing prototypes of television content transmissions to enable customers to view television content on their wireless devices, and may offer such services in the future.
Respondent registered the <allteltv.com> domain name on November 8, 2004.
Respondent’s domain name resolves to a website featuring links to various third-party commercial websites unrelated to Complainant’s business.
Respondent’s <allteltv.com> domain name is confusingly similar to Complainant’s ALLTEL service mark.
Respondent does not have any rights or legitimate interests in the <allteltv.com> domain name.
Respondent has registered and is using the <allteltv.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent having defaulted, leaving Complainant’s allegations uncontested, the panel makes the following findings on the basis of the evidence admitted in the record:
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights;
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the subject domain name has been registered and is being used in bad faith.
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); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000).
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:
(a) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(b) Respondent has no rights or legitimate interests in respect of the domain name; and
(c) the domain name has been registered and is being used in bad faith.
Complainant asserts, and, in the absence of contrary evidence, the Panel agrees, that Complainant has established rights in the ALLTEL mark through registration of the mark with the USPTO. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004).
Moreover, Complainant alleges that the <allteltv.com> domain name is confusingly similar to Complainant’s ALLTEL mark because the domain name incorporates the mark in its entirety and merely adds the descriptive letter-combination “tv,” the common abbreviation for “television”. The letters “tv,” when added to Complainant’s mark, have an obvious relation to Complainant’s business, and thus create confusingly similarity between the mark and Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003); see also Am. Online, Inc. v. Anytime Online Traffic Sch., FA 146930 (Nat. Arb. Forum Apr. 11, 2003).
Although Respondent’s <allteltv.com> domain name adds the generic top-level domain ‘.com,’ the addition of a generic top-level domain does not negate the confusingly similar character of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights to or legitimate interests in the <allteltv.com> domain name. When a complainant establishes a prima facie case pursuant to Policy ¶ 4(a)(ii), the burden shifts to the respondent to prove that it has rights or legitimate interests. Because of Respondent’s failure to respond to the allegations of the Complaint, the Panel is entitled to and does infer that Respondent does not have rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000); and Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000).
Moreover, Complainant alleges that Respondent is not commonly known by the <allteltv.com> domain name. No evidence to the contrary appearing in the record, the Panel concludes that, for this additional reason, Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001); and Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000).
Complainant has also offered uncontroverted evidence showing
that Respondent is using the <allteltv.com> domain name to operate
a website featuring links to various third-party commercial websites, through
which Respondent presumably receives referral fees. Thus, the Panel finds that Respondent’s use of a domain name that
is confusingly similar to Complainant’s mark to divert Internet users to
third-party websites for Respondent’s commercial gain does not constitute a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards,
FA 132439 (Nat. Arb. Forum Dec. 31, 2002); see
also Yahoo! Inc. v. Web Master,
FA 127717 (Nat. Arb. Forum Nov. 27, 2002); and Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114
(D. Mass. 2002).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
From the uncontested evidence provided by Complainant, the Panel infers that Respondent receives click-through fees for diverting Internet users to its commercial website. We therefore conclude that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv) inasmuch as Respondent is using the <allteltv.com> domain name intentionally to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant as to the source, sponsorship, affiliation or endorsement of its website. See H-D Michigan, Inc. v. Petersons Auto, FA 135608 (Nat. Arb. Forum Jan. 8, 2003); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002).
Moreover, Complainant contends, and Respondent does not
dispute, that Respondent registered the <allteltv.com> domain name
with actual or constructive knowledge of Complainant’s rights in the ALLTEL
service mark by virtue of Complainant’s prior registration of that mark with
the United States Patent and Trademark Office.
Registration of a confusingly similar domain name despite such actual or
constructive knowledge is, without more, evidence of bad faith registration and
use of the domain name pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506
(Nat. Arb. Forum Oct. 24, 2002); see
also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct.
4, 2002).
For these reasons, 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 the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <allteltv.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 30, 2005
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