Ameriprise Financial, Inc. v. Spiral Matrix
Claim Number: FA0611000856839
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 Spiral Matrix (“Respondent”), 1st Floor Muya House,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <riversourcemutualfunds.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 4, 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@riversourcemutualfunds.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:
Complainant provides financial services to over 2.7 million individual, business and institutional clients.
On
In connection with the provision of its mutual fund
investment services, the United States Patent and Trademark Office (“USPTO”)
granted Complainant a registration for the RIVERSOURCE service mark on
Complainant originally filed the registration for the
RIVERSOURCE mark on
On
Respondent’s disputed domain name resolves to a website that features links in a variety of categories, including mutual funds, investing, finance and financial planning.
Respondent’s <riversourcemutualfunds.com> domain name is confusingly similar to Complainant’s RIVERSOURCE mark.
Respondent does not have any rights or legitimate interests in the domain name <riversourcemutualfunds.com>.
Respondent has registered and uses the <riversourcemutualfunds.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a 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 same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has rights in the
RIVERSOURCE service mark through its registration with the USPTO. See Innomed
Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The disputed domain name contains Complainant’s RIVERSOURCE
mark in its entirety and merely adds the generic terms “mutual” and
“funds.” The addition of such generic
terms, especially when they directly relate to the mark-holder’s line of
business, fails to differentiate the disputed domain name from the mark that is
wholly-contained therein. Accordingly,
the <riversourcemutualfunds.com> domain
name is confusingly similar to Complainant’s RIVERSOURCE mark for the purposes
of Policy ¶ 4(a)(i).
See, for example, Vivid
Video, Inc. v. Tennaro, FA 126646 (Nat. Arb. Forum
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the domain name <riversourcemutualfunds.com>. Complainant bears the initial burden of proof to establish that Respondent lacks rights or legitimate interests in the disputed domain name. However, once Complainant sufficiently establishes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under appropriate circumstances, the assertion by a complainant that a respondent has no right or legitimate interest is sufficient to shift the burden of proof to that respondent to demonstrate that such a right or legitimate interest does exist); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to the domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent’s failure to submit a Response in this proceeding raises a presumption that it lacks right and legitimate interests in the disputed domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, a respondent failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that a respondent’s failure to respond can be construed as an admission that it has no legitimate interest in a domain names). However, the Panel nevertheless opts to analyze the record to determine if there is any basis for concluding that Respondent has rights or legitimate interests in the disputed domain name.
In this connection, we first observe that, according
to the WHOIS database, the disputed domain name is registered under the name,
“Spiral Matrix.” From the evidence before
us, it therefore appears that Spiral Matrix bears no relationship to
Complainant and that it is not commonly known by the disputed domain name or
any variation thereof. In light of this,
we conclude that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See Brown
v. Sarrault, FA 99584 (Nat. Arb. Forum
Additionally, Respondent does not deny that the disputed domain name resolves to a website that features numerous links, many of which relate to Complainant’s line of business. Respondent’s use of a confusingly similar domain name to resolve to what we may presume is a pay-per-click advertising website fails to amount to either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Party Night Inc. FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (holding that a respondent’s use of “confusingly similar derivatives of Complainant’s WELLS FARGO mark to divert Internet users to websites featuring pop-up advertisements” was not a bona fide offering of goods or services); see also Pioneer Hi-Bred Int’l Inc. v. Chan, FA 154119 (Nat. Arb. Forum May 12, 2003) (finding that a respondent did not have rights or legitimate interests in a domain name that used a complainant’s mark and redirected Internet users to a website that paid domain name registrants for referring those users to its search engine and pop-up advertisements).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Because Respondent uses its domain name to divert Internet users to a website that
features links to competing commercial websites, for which Respondent
presumably receives referral fees, there is a likelihood that Internet users
will become confused as to Complainant’s possible sponsorship or of affiliation
with the resulting website due to the financial thrust of its featured
content. Accordingly, Respondent’s
registration and use of the disputed domain name is in bad faith pursuant to
Policy ¶ 4(b)(iv).
See Philip Morris Inc. v.
r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that a respondent’s
registration of an infringing domain name to redirect Internet users to banner
advertisements constituted bad faith use of the domain name); see
also ESPN, Inc. v.
Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith
where a respondent linked a domain name to another domain name,
<iwin.com>, presumably receiving a portion of the advertising revenue
from the site by directing Internet traffic there, thus using a domain name to
attract Internet users for commercial gain).
Also apropos of our consideration of the issue of good faith
registration and use is Respondent’s failure to respond to the Complaint in
this proceeding. As was said by the
panel in MC Enterprises v. Segal,
D2005-1270 (WIPO
Although
a respondent is not obliged to participate in a domain name dispute, if it were
to fail to do so, it would be vulnerable to the inferences that flow naturally
from a complainant’s not unreasonable assertions of fact…. The information
provided by the Complainant, including the Respondent’s history, suggest bad faith in the acquisition and use of the subject
domain name. The Respondent has done nothing to supplant that suggestion.
Finally under this head, we are persuaded of Respondent’s bad faith registration and use of the disputed domain name by the breathtakingly brief interval between the publication of Complainant’s mark and the date of registration of Respondent’s confusingly similar domain. See, for example, Bulmers Ltd. v. Applepie Solutions Ltd., D2005-1274 (WIPO Jan. 27, 2006): “The Respondent’s registration of … the disputed domain name in the knowledge of the public launch of the Complainant’s trademark some four months earlier, indicat[es] an intention to use domain names embodying the Complainant’s marks with a view to profit from the goodwill flowing therefrom.”
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <riversourcemutualfunds.com> domain name be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated:
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