AMVETS (American Veterans) v. John Rathman
Claim Number: FA0602000643637
Complainant is AMVETS (American Veterans) (“Complainant”), represented by Diane Duhaime, of Jordan Burt LLP, 175 Powder Forest Drive, Suite 201, Simsbury, CT 06089-9658. Respondent is John Rathman (“Respondent”), 2111 Edgewood Street, Las Vegas, NV 89102.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amvetsweb.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
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 10, 2006; the National Arbitration Forum received a hard copy of the Complaint on February 17, 2006.
On February 13, 2006, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <amvetsweb.com> domain name is registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne It, Ltd. d/b/a Internet Names Worldwide 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 17, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 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@amvetsweb.com 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <amvetsweb.com> domain name is confusingly similar to Complainant’s AMVETS mark.
2. Respondent does not have any rights or legitimate interests in the <amvetsweb.com> domain name.
3. Respondent registered and used the <amvetsweb.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AMVETS (American Veterans), is a federally chartered non-profit corporation headquartered in Lanham, Maryland. Complainant has been using the AMVETS mark since at least July 23, 1947. Complainant is a veterans’ service organization that was created for charitable, educational, patriotic, and civic improvement purposes, and provides extensive services and support to veterans of the United States Armed Forces and their families.
Complainant’s AMVETS mark is specifically protected by federal statute 36 U.S.C.A. Section 22706, which provides that AMVETS “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.” Moreover, Complainant holds several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the AMVETS mark (i.e., Reg. No. 440,552 issued September 14, 1948).
Respondent registered the <amvetsweb.com> domain name on September 28, 2005. Respondent is using the disputed domain name to redirect Internet users to a website that features commercial content unrelated to Complainant. Respondent has attempted to sell the <amvetsweb.com> domain name to Complainant for $10,000.
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 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 <amvetsweb.com> domain name includes Complainant’s AMVETS mark because Respondent’s domain name incorporates Complainant’s mark in its entirety and adds the term “web” and the generic top-level domain “.com.” The Panel finds that such minor additions to Complainant’s registered mark do not negate the confusingly similar aspects of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding 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); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
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 <amvetsweb.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). 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).
The <amvetsweb.com> domain name is confusingly
similar to Complainant’s AMVETS mark and is used to redirect Internet users to
a website that features commercial content unrelated to Complainant. The Panel finds that Respondent’s use of the
disputed domain name to divert Internet users to a website that links to
commercial content unrelated to Complainant, and for which Respondent presumably
receives click-through fees, is not 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 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); see also Black & Decker Corp. v.
Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding
that the respondent’s use of the disputed domain name to redirect Internet users
to commercial websites, unrelated to the complainant and presumably with the
purpose of earning a commission or pay-per-click referral fee did not evidence
rights or legitimate interests in the domain name).
Furthermore, there is no evidence in the record suggesting that Respondent is commonly known by the <amvetsweb.com> domain name. Moreover, a federal statute grants Complainant exclusive rights to the AMVETS mark. Accordingly, the statute precludes Respondent from being commonly known by the disputed domain name, and the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Am. Nat’l 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).
Moreover, Respondent’s offer to sell the <amvetsweb.com> domain name to Complainant for $10,0000 evidences Respondent’s lack of rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The <amvetsweb.com> domain name resolves to a website that features commercial content unrelated to Complainant. The Panel presumes that Respondent receives commissions for diverting Internet users to Respondent’s website. Additionally, Respondent’s use of Complainant’s AMVETS mark in the domain name creates a likelihood of confusion and suggests an attempt to attract Internet users to Respondent’s website for Respondent’s commercial gain. The Panel finds that this is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
Furthermore, Federal statute governs Complainant’s rights in the AMVETS mark. Therefore, Respondent’s registration of the disputed domain name alone provides evidence of bad faith registration and use 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.”).
Moreover, Respondent offered to sell the <amvetsweb.com> domain name to Complainant for $10,000, an amount presumably exceeding Respondent’s out-of-pocket costs. Such conduct evidences Respondent’s registration and use of the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(i). Deutsche Bank AG v. Bruckner, D2000-0277 (WIPO May 30, 2000) (finding that the name was registered in bad faith because of the short time frame between the respondent’s registration and the unsolicited offer of sale to the complainant).
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 <amvetsweb.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Panelist
Dated: March 28, 2006
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