AMVETS (American Veterans) v. American Veterans Alliance c/o Waddell McGee
Claim Number: FA0602000639876
Complainant is AMVETS (American Veterans) (“Complainant”), represented by Diane Duhaime, of Jorden Burt LLP, 175 Powder Forest Drive, Suite 201, Simsbury, CT 06089-9658. Respondent is American Veterans Alliance c/o Waddell McGee (“Respondent”), 3803 Broadway, Louisville, KY 40211.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org>, registered with Tucows 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.
Tyrus R. Atkinson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 7, 2006; the National Arbitration Forum received a hard copy of the Complaint on February 9, 2006.
On February 8, 2006, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names are registered with Tucows Inc. and that Respondent is the current registrant of the names. Tucows Inc. has verified that Respondent is bound by the Tucows 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 February 14, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 6, 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@amvetsalliance.com, postmaster@amvetsalliance.net and postmaster@amvetsalliance.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, 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 <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names are confusingly similar to Complainant’s AMVETS mark.
2. Respondent does not have any rights or legitimate interests in the <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names.
3. Respondent registered and used the <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AMVETS (American Veterans), is a non-profit veterans organization that provides services and support to veterans of the United States Armed Forces and their families. Complainant provides free advice to veterans regarding compensation claims and also advises Congress and administrative agencies on issues important to veterans.
A federal statute, 36 U.S.C.A. § 22706, protects Complainant’s rights to the AMVETS mark. It states that Complainant and its state, regional, and local subdivisions have the “exclusive right to use the name ‘AMVETS (American Veterans)’ and seals, emblems and badges the corporation adopts.” Complainant also holds trademark registrations for the AMVETS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 440,552 issued September 14, 1948; Reg. No. 901,017 issued October 13, 1970; Reg. No. 2,383,677 issued September 5, 2000). The USPTO record for AMVETS (Serial No. 89/000105 filed May 17, 1945) states that the AMVETS mark is protected under U.S. statute. Complainant also maintains websites at the <amvets.org> (registered March 12, 1996), <amvets.com> (registered April 13, 2004), <amvetsonline.com> (registered September 1, 2004) and <amvetsalbum.com> (registered July 9, 2005) domain names. In addition, Complainant has licensed third parties to register domain names incorporating the AMVETS mark, including <amvetspost72.com>, <amvetspa.org> and <amvetspost66.net>.
Respondent registered the <amvetsalliance.com>,
<amvetsalliance.net> and <amvetsalliance.org> domain
names on September 24, 2004.
Respondent’s domain names resolve to a website purporting to provide
veterans services similar to those Complainant offers under the AMVETS
mark. The link “About Us” resolves to a
screen that describes Respondent as a “national veterans service organization”
that advocates for homeless and economically disadvantaged veterans. The page also contains the statement
“virtually all difficulties and problems encountered by veterans can be traced
to the arbitrary and capricious denial of benefits due and owing to deserving
veterans.” Moreover, the link “Donations”
resolves to a screen displaying Complainant’s AMVETS mark and asking for
donations from Internet users to support Respondent’s services.
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 to the AMVETS mark pursuant to a federal statute, 36 U.S.C.A. § 22706, and by registration of the mark with the USPTO. See Am. Nat’l Red Cross v. Universal Translator, Inc., FA 237440 (Nat. Arb. Forum Mar. 31, 2004) (“Complainant has established rights in the RED CROSS mark through evidence of wide use of the mark in commerce, through evidence of acts of Congress protecting that mark, and through registration of the mark on the Principal Register of the U.S. Patent and Trademark Office.”); 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 <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names are confusingly similar to Complainant’s AMVETS mark pursuant to Policy ¶ 4(a)(i), because each wholly incorporates the mark and merely adds the generic term, “alliance,” and a different generic top-level domain. In Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000), the respondent registered domain names incorporating the SONY mark and added generic words and top-level domains to the end of the mark. The Panel stated that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied.” Therefore, Respondent’s addition of generic words does not distinguish its domain names from Complainant’s AMVETS mark. Id; see also Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., D2001-0075 (WIPO Mar. 6, 2001) (finding that the domain name <christiesauction.com> is confusingly similar to the complainant's mark since it merely adds the word “auction” used in its generic sense).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names. Complainant must first make a prima facie case in support of its allegations, and then the burden shifts to the Respondent to show it does have 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <amvetsalliance.com>,
<amvetsalliance.net> and <amvetsalliance.org> domain
names. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000)
(finding no rights or legitimate interests where the respondent fails to
respond); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
However, the Panel will now examine the record to determine if
Respondent has rights or legitimate interests under Policy ¶ 4(c).
Despite registering the <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names under the name “American Veterans Alliance c/o Waddell McGee,” there is no other evidence in the record suggesting that Respondent is commonly known by the disputed domain names. Moreover, a federal statute grants Complainant exclusive rights to the AMVETS mark, and therefore the statute precludes Respondent from being commonly known by the disputed domain names. Thus, Respondent cannot establish rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See American National Red Cross v. Rogers, FA 104581 (Nat. Arb. Forum Feb. 14, 2002)(“Respondent cannot prove that he is commonly known as <animalredcross.com> since the dominant portion of the disputed domain name is RED CROSS and because of 18 U.S.C. § 706 and § 917 provide that the only entity who can use that mark is Complainant.”); see also Int'l Olympic Comm. v. Ritchey, FA 128817 (Nat. Arb. Forum Jan. 20, 2003) (finding that the Olympic Amateur Sports Act, granting the complainant exclusive rights in the Olympic symbol and the word Olympic, preempts any chance for the respondent to claim rights or legitimate interests in an infringing domain name).
In addition, Respondent’s <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names, which include Complainant’s AMVETS mark, resolve to a website offering similar veterans services as Complainant offers under the AMVETS mark. Respondent’s website also displays a link to “Donations,” which resolves to a screen displaying Complainant’s AMVETS mark and asking for money to support veterans. In American National Red Cross v. Rogers, FA 104581 (Nat. Arb. Forum Feb. 14, 2002), the respondent used the <animalredcross.com> domain name, which included the complainant’s RED CROSS mark, to solicit a major corporation for donations. The Panel stated, “Respondent has attempted to take advantage of a domain name that is confusingly similar to a famous company that relies on such solicited funds. This action by Respondent can hardly qualify as using the disputed domain name in connection with a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i).” Id. The Panel also concluded that the respondent’s solicitation of donations was not a legitimate noncommercial use under Policy ¶ 4(c)(iii), because the respondent “intended to infer that there is a relationship between the disputed domain name <animalredcross.com> and Complainant.” Id. Therefore, Respondent is using Complainant’s AMVETS mark to divert Internet users seeking Complainant’s veterans services to its own website for commercial gain by soliciting donations from consumers who might believe Respondent is affiliated with Complainant. Such use 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 MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Because a federal statute governs Complainant’s rights in the AMVETS mark, Respondent’s registration of the disputed domain names alone provides evidence of bad faith registration and use. In Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003), the panel held that when both parties to a proceeding are residents of the United States and a federal statute protects the mark, the Panel can conclude that the domain name was registered and used in bad faith. In this case, Complainant is a resident of Connecticut, the WHOIS information indicates that Respondent is a resident of Kentucky, and 36 U.S.C. § 22706 grants Complainant exclusive rights to use the AMVETS mark. Therefore, Respondent has registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See Int'l Olympic Comm. v. Ritchey, FA 128817 (Nat. Arb. Forum Jan. 20, 2003) (finding that the respondent's registration was done in violation of a federal statute, and as such was held to be ipso facto bad faith); see also Am. Nat’l Red Cross v. Universal Translator, Inc., FA 237440 (Nat. Arb. Forum Mar. 31, 2004) (“18 U.S.C. §§ 706 and 917 alone permit the inference that the domain names were registered and used in bad faith, and Respondent has not come forward with any evidence rebutting this presumption.”).
In addition, Respondent is using the <amvetsalliance.com>,
<amvetsalliance.net> and <amvetsalliance.org> domain
names, which include Complainant’s AMVETS mark, to redirect Internet users to
its own website where it displays Complainant’s AMVETS mark and solicits
donations to support veterans services similar to those offered by
Complainant. Therefore, Respondent is
taking advantage of the confusing similarity between its domain names and
Complainant’s AMVETS mark, and profiting from the goodwill associated with the
mark. Use of the disputed domain names
for this purpose is indicative of bad faith registration and use under Policy ¶
4(b)(iv). See Am. Nat’l Red Cross v.
Rogers, FA 104581 (Nat. Arb. Forum Feb. 14, 2002) (“Respondent registered a
domain name that incorporates Complainant’s famous RED CROSS mark and then
Respondent used the disputed domain name and attempting [sic] to solicit funds
from one of Complainant’s major contributors.
This action by Respondent is evidence that he used
<animalredcross.com> in bad faith as outlined by Policy ¶ 4(b)(iv).”); see also Nat’l Rifle Ass'n. v. fredg.com, FA
95837 (Nat. Arb. Forum Nov. 30, 2000) (finding bad faith where the respondent
registered the domain names <friendsofnra.com>, <friendsofnra.net>
and <friendsofnra.org> with
the intention of using the domain names in connection with individual NRA
fundraising, but without permission from the complainant to use the registered
marks).
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 <amvetsalliance.com>, <amvetsalliance.net> and <amvetsalliance.org> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Panelist
Dated: March 28, 2006
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