AOL LLC v. Liuxin d/b/a Liuxin Liuxin
Claim Number: FA0610000812054
Complainant is AOL LLC (“Complainant”), represented by James
R. Davis, of Arent Fox PLLC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <sportaol.com>, registered with Web Commerce Communications Limited d/b/a Webnic.cc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On October 9, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 30, 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@sportaol.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <sportaol.com> domain name is confusingly similar to Complainant’s AOL.COM mark.
2. Respondent does not have any rights or legitimate interests in the <sportaol.com> domain name.
3. Respondent registered and used the <sportaol.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AOL LLC, is a
provider of various Internet services worldwide. Complainant uses its AOL.COM mark in
connection with various services, including sports information. Complainant holds two registrations with the
United States Patent and Trademark Office (“USPTO”) for its AOL.COM mark (Reg.
No. 2,325,291 issued
Respondent registered the <sportaol.com>
domain name on
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. 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 registrations with the USPTO sufficiently establish Complainant’s rights in the AOL.COM mark. 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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
The Panel finds that Respondent’s <sportaol.com> domain name is confusingly similar to
Complainant’s AOL.COM mark as it combines Complainant’s mark in its entirety
with the generic term “sport.” Due to
Complainant’s offering of sports related information, this term has a
connection to Complainant and Complainant’s business. As such, it is confusingly similar to
Complainant’s mark under Policy ¶ 4(a)(i). Space Imaging LLC v. Brownell, AF-0298
(eResolution
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <sportaol.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 have rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Respondent’s failure to answer the Complaint raises the presumption that Respondent lacks rights or legitimate interests in the <sportaol.com> domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.’”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts that Respondent is not authorized to use Complainant’s AOL.COM mark and that Respondent is not associated with Complainant in any way. Furthermore, Respondent’s WHOIS information does not suggest that Respondent is commonly known by the disputed domain name and there is no evidence in the record to suggest that Respondent has ever been known by the disputed domain name. In Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000), the panel found no rights or legitimate interests where the respondent was not commonly known by the mark and had never applied for a license or permission from the complainant to use the trademarked name. See 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). Absent evidence of Respondent being known by the disputed domain name prior to the filing of the instant Complaint, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent is using the <sportaol.com> domain name to operate a website that Respondent uses to advertise various merchandise. The Panel finds that such use of Complainant’s mark, which diverts Internet users attempting to locate Complainant, is not 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 Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also 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.
Based on the uncontested evidence presented by Complainant,
the Panel infers that Respondent is using the good-will associated with
Complainant’s mark to re-direct Internet users to Respondent’s own website for
its own commercial gain through the advertisement and sale of various
products. Furthermore, Respondent’s <sportaol.com> domain name is capable
of creating a likelihood of confusion as the source and affiliation of
Complainant with the disputed domain name and corresponding website. The Panel thus finds bad faith registration
and use under Policy ¶ 4(b)(iv). See
Perot Sys. Corp. v. Perot.net,
FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith
where the domain name in question is obviously connected with the complainant’s
well-known marks, thus creating a likelihood of confusion strictly for
commercial gain); see also Drs. Foster
& Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where the respondent directed Internet users seeking the
complainant’s site to its own website for commercial gain).
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 <sportaol.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: November 21, 2006
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