national
arbitration forum
DECISION
Baylor University v. Baylor
University c/o Bob
Hartland
Claim Number: FA0611000841917
PARTIES
Complainant is Baylor University (“Complainant”), represented by William
G. Barber, of Pirkey Barber LLP, 600 Congress Avenue, Suite 2120, Austin,
TX 78701. Respondent is Baylor University c/o Bob
Hartland (“Respondent”), 500 Speight Street, Waco, TX 76798-7268.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <baylorcollegemedicine.com>, <baylordentalschool.com>, <baylorhospitalindallas.com>,
<baylorhospitaljobs.com>, <baylorplan.com>, <baylorschoolofnursing.com>,
<baylorstore.com> and <baylorwaxahachie.com>,
registered with Intercosmos Media Group, Inc.
d/b/a Directnic.com, and <baylorcrew.com>
and <baylorlawschool.org>, registered
with Domain Contender LLC.
PANEL
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.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to
the National Arbitration Forum electronically on November 14,
2006; the National Arbitration Forum received a hard copy of
the Complaint on November 15, 2006.
On November 17,
2006, Intercosmos Media
Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National
Arbitration Forum that the <baylorcollegemedicine.com>, <baylordentalschool.com>, <baylorhospitalindallas.com>,
<baylorhospitaljobs.com>, <baylorplan.com>, <baylorschoolofnursing.com>,
<baylorstore.com> and <baylorwaxahachie.com> domain
names are registered with Intercosmos Media
Group, Inc. d/b/a Directnic.com and that Respondent is the current
registrant of the names. Intercosmos Media Group, Inc. d/b/a Directnic.com has
verified that Respondent is bound by the Intercosmos
Media Group, Inc. d/b/a Directnic.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 November 17,
2006, Domain Contender LLC
confirmed by e-mail to the National Arbitration Forum that the <baylorcrew.com> and <baylorlawschool.org> domain
names are registered with Domain Contender LLC
and that Respondent is the current registrant of the names. Domain
Contender LLC has verified that Respondent is bound by the Domain Contender LLC registration agreement and
has thereby agreed to resolve domain-name disputes brought by third parties in
accordance with the Policy.
On November 21,
2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of December
11, 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@baylorcollegemedicine.com, postmaster@baylorcrew.com, postmaster@baylordentalschool.com,
postmaster@baylorhospitalindallas.com, postmaster@baylorhospitaljobs.com, postmaster@baylorlawschool.org, postmaster@baylorplan.com, postmaster@baylorschoolofnursing.com, postmaster@baylorstore.com and postmaster@baylorwaxahachie.com by e-mail.
Having received no response from
Respondent, the National Arbitration Forum transmitted to the parties a
Notification of Respondent Default.
On December 19, 2006, pursuant to
Complainant's request to have the dispute decided by a single-member Panel, the
National Arbitration Forum appointed James A. Carmody, Esq., 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.
RELIEF SOUGHT
Complainant requests that the domain
names be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A.
Complainant makes the following assertions:
1. Respondent’s
<baylorcollegemedicine.com>, <baylorcrew.com>, <baylordentalschool.com>,
<baylorhospitalindallas.com>, <baylorhospitaljobs.com>,
<baylorlawschool.org>, <baylorplan.com>, <baylorschoolofnursing.com>,
<baylorstore.com> and <baylorwaxahachie.com> domain
names are confusingly similar to Complainant’s BAYLOR mark.
2. Respondent
does not have any rights or legitimate interests in the <baylorcollegemedicine.com>, <baylorcrew.com>, <baylordentalschool.com>,
<baylorhospitalindallas.com>, <baylorhospitaljobs.com>,
<baylorlawschool.org>, <baylorplan.com>, <baylorschoolofnursing.com>,
<baylorstore.com> and <baylorwaxahachie.com> domain
names.
3. Respondent
registered and used the <baylorcollegemedicine.com>, <baylorcrew.com>, <baylordentalschool.com>,
<baylorhospitalindallas.com>, <baylorhospitaljobs.com>,
<baylorlawschool.org>, <baylorplan.com>, <baylorschoolofnursing.com>,
<baylorstore.com> and <baylorwaxahachie.com> domain
names in bad faith.
B.
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Baylor
University, is the oldest
institution of higher learning in the state of Texas and is the world’s largest Baptist
university. Complainant has continuously
used the BAYLOR mark in connection with its university schools and services
since 1845. Complainant has also
registered the BAYLOR mark with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 1,465,910 issued November 17, 1987; Reg. No. 1,468,436 issued December 8, 1987;
Reg. No. 1,858,559 issued October 18, 1994; Reg. No. 1,936,714 issued November 21, 1995).
Respondent registered the disputed domain names on the
following dates: <baylorcrew.com> (May 18, 2005), <baylorstore.com> (June
21, 2005), <baylorhospitalindallas.com> (November 8, 2005), <baylorcollegemedicine.com>
(November 8, 2005), <baylorhospitaljobs.com> (January 1,
2006), <baylorlawschool.org> (January 24, 2006), <baylorplan.com>
(April 22, 2006), <baylorschoolofnursing.com> (April 22, 2006), <baylordentalschool.com>
(April 23, 2006), <baylorwaxahachie.com> (May 2, 2006).
Respondent’s domain names
each resolve to a commercial search engine displaying links to websites with content
unrelated to Complainant.
DISCUSSION
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.
Identical and/or Confusingly Similar
Complainant has established rights in the BAYLOR mark
through registration of the mark with the USPTO. See Intel Corp. v. Macare, FA 660685
(Nat. Arb. Forum Apr.
26, 2006) (finding that the complainant had established rights in
the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the
USPTO); see also Miller Brewing Co. v. The Miller Family, FA 104177
(Nat. Arb. Forum Apr.
15, 2002) (finding that the complainant had established rights to
the MILLER TIME mark through its federal trademark registrations).
Each of Respondent’s domain names contain Complainant’s
entire registered BAYLOR mark combined with a term or terms describing an
aspect of Complainant’s services, including law, medicine, and athletics. In Arthur Guinness Son & Co. (Dublin)
Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001), the panel found that
the respondent’s domain names, all of which contained the complainant’s entire
GUINNESS mark but merely added common terms to the end, such as “irish stout,”
“guide,” “tours” and “jazz festival,” were confusingly similar to the mark
because each featured the complainant’s GUINNESS mark “prominently.” Because the disputed domain names at issue
here also prominently feature Complainant’s mark in combination with common
terms, the Panel finds that the disputed domain names are confusingly similar
to the BAYLOR mark pursuant to Policy ¶ 4(a)(i). See Disney v. McSherry, FA 154589
(Nat. Arb. Forum June
17, 2003) (finding the <disneyvacationvillas.com> domain name
to be confusingly similar to Complainant’s DISNEY mark because it incorporated
Complainant’s entire famous mark and merely added two terms to it).
The Panel concludes that Complainant has satisfied Policy ¶
4(a)(i).
Rights or Legitimate Interests
Complainant alleges that Respondent lacks rights and
legitimate interests in the contested
domain names. Complainant must first
make a prima facie case in support of its allegations, and then the
burden shifts to 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.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the contested domain names. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000)
(finding that the respondents’ failure to respond can be construed as an
admission that they have no legitimate interest in the domain names); see
also Geocities v. Geocities.com,
D2000-0326 (WIPO June
19, 2000) (finding that the respondent has no rights or legitimate
interests in the domain name because the respondent never submitted a response
or provided the panel with evidence to suggest otherwise). However, the Panel
will now examine the record to determine if Respondent has rights or legitimate
interests under Policy ¶ 4(c).
While the WHOIS information lists the registrant of the
disputed domain names as “Baylor
University c/o Bob
Hartland,” there is no other evidence in the record suggesting that Respondent
is commonly known by the disputed domain names.
Hence, the Panel finds that Respondent has not established rights or
legitimate interests in the disputed domain names under Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA
155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly
known by” the <shantiyogaworks.com> domain name despite listing
its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the
Panel that the respondent was ever ‘commonly known by’ the disputed domain name
prior to its registration of the disputed domain name”); see also Nature’s
Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004)
(“In its WHOIS contact information, Respondent lists its name and its
administrative contact as ‘Natures Path, Inc.’
However, since Respondent failed to respond to the Complaint, there has
not been any affirmative evidence provided to the Panel showing that Respondent
was commonly known by the disputed domain name prior to its registration of the
domain name.”).
Furthermore, Respondent’s domain names each resolve to a
website featuring links to websites with content unrelated to Complainant. In Black & Decker Corp. v. Clinical
Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002), the respondent was
using the <blackandecker.com> domain name, which the panel held was
confusingly similar to the complainant’s BLACK & DECKER mark, to redirect
Internet users to third-party commercial websites. The panel concluded that the respondent
presumably received click-through fees for each consumer it diverted to other
websites, and that such diversion for commercial gain did not constitute a bona
fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). Id. In this case, Respondent is also redirecting
Internet users seeking information on Complainant to other websites, and it
presumably profits from this diversion scheme.
Therefore, Respondent lacks rights and legitimate interests in the
disputed domain names pursuant to Policy ¶¶ 4(c)(i) and 4(c)(iii). See Geoffrey, Inc. v. Toyrus.com, FA
150406 (Nat. Arb. Forum Apr. 25, 2003) (holding that the respondent’s use of the
<toyrus.com> domain name, a simple misspelling of the complainant’s mark,
to divert Internet users to a website that featured pop-up advertisements and
an Internet directory, was neither a bona fide offering of goods or
services nor a legitimate noncommercial or fair use of the domain name).
The Panel concludes that Complainant has satisfied Policy ¶
4(a)(ii).
Registration and Use in Bad Faith
Respondent is using the disputed
domain names, all of which are confusingly similar to Complainant’s BAYLOR
mark, to redirect Internet users seeking information on Complainant’s
university to a commercial web directory displaying links to websites with
content unrelated to Complainant. In ESPN, Inc. v. Ballerini, FA 95410 (Nat.
Arb. Forum Sept.
15, 2000), the panel found bad faith where the respondent had
registered the <espnclassic.com> domain name and used it to redirect
Internet users to a website at the <iwin.com> domain name, because the
respondent presumably received a portion of the advertising revenue from the
third-party website by redirecting Internet traffic there and thus the
respondent was using the domain name to attract Internet users for commercial
gain. Likewise, the
Panel infers that Respondent receives referral fees for each consumer it
diverts to other websites and is, therefore, taking advantage of the confusing
similarity between the disputed domain name and Complainant’s mark in violation
of Policy ¶ 4(b)(iv). See Bank of Am.
Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the
respondent’s previous use of the <bankofamericanfork.com> domain name to
maintain a web directory was evidence of bad faith because the respondent
presumably commercially benefited by receiving click-through fees for diverting
Internet users to third-party websites).
The Panel concludes that Complainant has satisfied Policy ¶
4(a)(iii).
DECISION
Having established all three elements required under the
ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baylorcollegemedicine.com>, <baylorcrew.com>, <baylordentalschool.com>,
<baylorhospitalindallas.com>, <baylorhospitaljobs.com>,
<baylorlawschool.org>, <baylorplan.com>, <baylorschoolofnursing.com>,
<baylorstore.com> and <baylorwaxahachie.com> domain
names be TRANSFERRED from Respondent to Complainant.
James
A. Carmody, Esq., Panelist
Dated: January 2, 2007
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