Booz Allen Hamilton Inc. v. Marc Buchard c/o Domains Unlimited EU
Claim Number: FA0605000706689
Complainant is Booz Allen Hamilton Inc. (“Complainant”), represented by Kristen S. Knecht, of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, 311 South Wacker Drive, Suite 5000, Chicago, IL 60606. Respondent is Marc Buchard c/o Domains Unlimited EU (“Respondent”), Schmarjestr. 33, Hamburg, DE 22767.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <boozallensucks.com>, registered with Computer Services Langenbach Gmbh d/b/a Joker.com.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 15, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 17, 2006.
On May 16, 2006, Computer Services Langenbach Gmbh d/b/a Joker.com confirmed by e-mail to the National Arbitration Forum that the <boozallensucks.com> domain name is registered with Computer Services Langenbach Gmbh d/b/a Joker.com and that Respondent is the current registrant of the name. Computer Services Langenbach Gmbh d/b/a Joker.com has verified that Respondent is bound by the Computer Services Langenbach Gmbh d/b/a Joker.com 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 May 24, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 13, 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@boozallensucks.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 16, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <boozallensucks.com> domain name is confusingly similar to Complainant’s BOOZ ALLEN HAMILTION mark.
2. Respondent does not have any rights or legitimate interests in the <boozallensucks.com> domain name.
3. Respondent registered and used the <boozallensucks.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Booz Allen Hamilton Inc., is an international consulting firm that has been using its trademark BOOZ ALLEN HAMILTON since at least 1942. Complainant holds trademark registrations in numerous countries worldwide, including with the United States Patent and Trademark Office (“USPTO”) for the BOOZ ALLEN HAMILTON mark (Reg. No. 888,837 issued March 31, 1970). Complainant has also used a shortened form of its trademark, “Booz Allen” for many years in connection with its business.
Respondent registered the <boozallensucks.com> domain name on December 21, 2003. Respondent’s disputed domain name resolves to the website of a direct competitor, Bearing Point, Inc. at <www.bearingpoint.com>.
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.
The Panel finds that Complainant's federal trademark
registration with the USPTO sufficiently establishes Complainant’s rights in
the BOOZ ALLEN HAMILTON mark. 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 <boozallensucks.com>
domain name is confusingly similar to Complainant’s BOOZ ALLEN HAMILTON mark
pursuant to Policy ¶ 4(a)(i) as it uses a common, shortened form of the mark
combined with the word “sucks.” The
Panel finds that these alterations to Complainant’s mark are not enough to
negate the confusingly similar aspects of the disputed domain name pursuant to
Policy ¶ 4(a)(i). See Modern Props,
Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) (“Notwithstanding
the analysis by Respondent, ‘modprops’ is a contraction or shorthand for ‘Modern
Props.’ ‘Mod’ cononotes [sic] ‘modern’ regardless of any other dictionary
meanings, so the names are substantially similar in meaning.”); see also ADT Servs. AG v. ADT Sucks.com, D2001-0213 (WIPO Apr. 23, 2001) (exploring the
difference of opinion among panels on "sucks" domain name disputes
and concluding that use of the "sucks" suffix does not defeat the
complainant's confusing similarity argument).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <boozallensucks.com> domain name. Complainant must first make a prima facie case in support of its allegations, and the burden then shifts to Respondent to show it does not have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that 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”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests).
Respondent’s failure to answer the complaint raises a presumption that Respondent has no rights or legitimate interests in the <boozallensucks.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent’s WHOIS information does not suggest that
Respondent is commonly known by the disputed domain name. There is also no evidence in the record to
suggest that Respondent is or has ever been known by the disputed domain
name. In Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum
Jan. 23, 2001), the panel found that the respondent did not have rights in a
domain name where the respondent was not known by the mark. 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.”). Therefore, the Panel
finds that the Respondent is not commonly known by the disputed domain name
under Policy ¶ 4(c)(ii).
The evidence on record indicates that Respondent is using the disputed domain name to redirect Internet users to the site of a direct competitor. In Hale Prods., Inc. v. Hart Int’l Inc., FA 198031 (Nat. Arb. Forum Dec. 2, 2003), the panel found that the respondent lacked rights and legitimate interests in the <jawsoflife.com> domain name as it was being used to divert Internet users to the website for Phoenix Rescue Tools, one of Complainant’s direct competitors. See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services). Consequently, the Panel finds that Respondent’s use of the disputed domain name to re-direct Internet users to a strictly competing website of the Complainant is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <boozallensucks.com> domain name
resolves to the website of a direct competitor. Thus, the Panel finds that Respondent registered and used
Complainant’s BOOZ ALLEN HAMILTON mark with the intent to disrupt Complainant’s
business. Such conduct is evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb.
Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users
through to the respondent’s competing business); see also Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)).
Furthermore, the Panel infers based on the evidence in the record that Respondent is using the disputed domain name for commercial gain. The Respondent is taking advantage of the Complainant’s use of its trademark and its success in its field to redirect Internet users to a competing business. The Panel finds that such use of the Complainant’s mark creates a likelihood of confusion among Internet users who are attempting to locate Complainant’s services. Such use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant; see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
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 <boozallensucks.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 30, 2006
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