Ameriprise Financial, Inc. v. Master Minds Investments, LLC c/o Steve Skelton
Claim Number: FA0611000856383
Complainant is Ameriprise Financial, Inc. (“Complainant”), represented by Shawn
Diedtrich, of Snell & Wilmer L.L.P., One Arizona
Center, 400 E. Van Buren, Phoenix, AZ 85004-2202. Respondent is Master Minds Investments, LLC c/o Steve
Skelton (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>, and <ameriprisehomeloans.biz>, registered with Go Daddy Software, 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.
Honorable
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 5, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 26, 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@ameriprisehomeloans.com, postmaster@ameriprisehomeloans.net, postmaster@ameriprisehomeloans.info, and postmaster@ameriprisehomeloans.biz 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>, and <ameriprisehomeloans.biz> domain names are confusingly similar to Complainant’s AMERIPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>, and <ameriprisehomeloans.biz> domain names.
3. Respondent registered and used the <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>, and <ameriprisehomeloans.biz> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent
registered the <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>,
and <ameriprisehomeloans.biz> domain names 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. 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.
Under
Policy ¶ 4(a)(i), Complainant is not required to hold
a trademark registration to establish rights in the AMERIPRISE mark. See
British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting
that the Policy “does not distinguish between registered and unregistered
trademarks and service marks in the context of abusive registration of domain
names” and applying the Policy to “unregistered trademarks and service marks”);
see also SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13,
2000) (finding that the Rules do not require that the complainant's trademark
or service mark be registered by a government authority or agency for such
rights to exist).
Complainant has established common law rights in the AMERIPRISE mark through continuous and extensive use of the mark in connection with its financial services business since its announcement as a company in May 2005. The Panel finds that Complainant has generated substantial goodwill under the AMERIPRISE mark and has shown the acquisition of secondary meaning sufficient to establish common law rights in the mark. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of [KEPPEL BANK] in connection with its banking business, it has acquired rights under the common law.”).
Complainant contends that Respondent’s <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>, and <ameriprisehomeloans.biz> domain names are confusingly similar to Complainant’s mark. Respondent’s disputed domain names contain Complainant’s mark in its entirety and add the terms “home” and “loans,” along with a generic top-level domain (“gTLD”) such as “.com,” “.net,” “.info,” or “.biz.” The Panel finds that such additions to Complainant’s mark are insufficient to properly distinguish Respondent’s domain names from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark); 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 <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>, and <ameriprisehomeloans.biz> domain names. 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).
Complainant contends that Respondent is using the <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>,
and <ameriprisehomeloans.biz> domain names to operate
websites featuring links to various competing and non-competing commercial
websites. The Panel finds that simply
displaying links to other third-party websites is neither a bona fide
offering for purposes of Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396
(Nat. Arb. Forum
Moreover, Complainant contends that Respondent is not
commonly known by the disputed domain names or authorized to register domain
names featuring Complainant’s mark.
Without evidence suggesting otherwise, the Panel finds that Respondent
is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no
rights or legitimate interests where (1) the respondent is not a licensee of
the complainant; (2) the complainant’s prior rights in the domain name precede
the respondent’s registration; (3) the respondent is not commonly known by the
domain name in question); see also Ian Schrager
Hotels, L.L.C. v. Taylor, FA 173369 (Nat.
Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent
is using the confusingly similar <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>,
and <ameriprisehomeloans.biz> domain names to attract
Internet users to its websites, which feature links to various competing and
non-competing commercial websites from which Respondent presumably receives
referral fees. The Panel finds that such diversionary use for
Respondent’s own commercial gain constitutes bad faith registration and use
under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum
Respondent
is using the <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>,
and <ameriprisehomeloans.biz> domain names to redirect Internet
users to Respondent’s website that features links to competing third-party
websites. The Panel finds that such use constitutes disruption and is
evidence of bad faith registration and use under to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc.,
FA 94864 (Nat. Arb. Forum
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 <ameriprisehomeloans.com>, <ameriprisehomeloans.net>, <ameriprisehomeloans.info>, and <ameriprisehomeloans.biz> domain names be TRANSFERRED from Respondent to Complainant.
Honorable
Dated: January 12, 2007
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