American Traveler Staffing Professionals, LLC v. Web Master
Claim Number: FA0601000624918
Complainant is American Traveler Staffing Professionals, LLC (“Complainant”), represented by Paul D. McGrady, of Greenberg Traurig, LLP, 77 West Wacker Drive, Suite 2500, Chicago, IL 60601. Respondent is Web Master (“Respondent”), General Delivery, Georgetown, Grand Cayman, GT, KY.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americantraveller.com>, registered with Addrcreat.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 12, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 16, 2006.
On January 12, 2006, Addrcreat confirmed by e-mail to the National Arbitration Forum that the <americantraveller.com> domain name is registered with Addrcreat and that Respondent is the current registrant of the name. Addrcreat has verified that Respondent is bound by the Addrcreat 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 January 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 9, 2006 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@americantraveller.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 16, 2006, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <americantraveller.com> domain name is confusingly similar to Complainant’s AMERICAN TRAVELER mark.
2. Respondent does not have any rights or legitimate interests in the <americantraveller.com> domain name.
3. Respondent registered and used the <americantraveller.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Traveler Staffing Professionals, LLC, offers short-term and permanent job assignments to nurses at hospitals throughout the United States, and has used its using the AMERICAN TRAVELER mark in offering traveling nurse placement services to hospitals for twenty-five years. Complainant has registered its AMERICAN TRAVELER mark with the United States Patent and Trademark Office (“USPTO”) (U.S. Reg. No. 1,979,585; registered on February 4, 2003).
Respondent registered the <americantraveller.com> domain name on April 3, 2004. Respondent is using the disputed domain name to operate a website featuring links to Complainant’s direct competitors.
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 AMERICAN TRAVELER
mark through its 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.”).
Respondent’s <americantraveller.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i) because it wholly incorporates Complainant’s AMERICAN TRAVELER mark and merely eliminates the space between the two words, and misspells the word “traveler” by adding an extra “l”. The removal of a space, and the addition of a letter to a term, do not negate the fact that Respondent’s domain name is confusingly similar to Complainant’s mark. See Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such “generic” typos do not change respondent’s infringement on a core trademark held by the complainant); 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, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”).
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 <americantraveller.com> domain name. Complainant makes a prima facie case in support of its allegations, therefore the burden shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) ( “Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel notes that Respondent has failed to respond to the complaint.
Respondent is using the <americantraveller.com> domain name, which is confusingly similar to Complainant’s AMERICAN TRAVELER mark, to divert consumers to a website featuring links to Complainant’s direct competitors. The Panel infers that Respondent receives payment in return for diverting internet users. Such use of the disputed domain name for 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 of the domain name pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
There is no evidence in the WHOIS database that Respondent is commonly known by the <americantraveller.com> domain name. Complainant asserts that it has not given Respondent any license, permission, or authorization to use its AMERICAN TRAVELER mark. Therefore, there is no evidence that Respondent has established any rights or legitimate interests in the <americantraveller.com> domain name pursuant to Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondents is using the <americantraveller.com> domain name, which is confusingly similar to Complainant’s AMERICAN TRAVELER mark, to direct Internet users to a website containing links to Complainant’s direct competitors. The Panel infers that Respondent receives click-through fees for directing Internet users to this website. The Panel infers that Respondent is taking advantage of the likelihood of confusion between Respondent’s domain name and Complainant’s mark, and finds that that such use constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent); see also 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).
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 <americantraveller.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 1, 2006
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