Claim Number: FA0701000881136
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <tuftsgeek.com>, registered with Go Daddy Software, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 6, 2007 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@tuftsgeek.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 <tuftsgeek.com> domain name is confusingly similar to Complainant’s TUFTS mark.
2. Respondent does not have any rights or legitimate interests in the <tuftsgeek.com> domain name.
3. Respondent registered and used the <tuftsgeek.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent registered the <tuftsgeek.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. 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.
Complainant’s registrations of the TUFTS mark with the USPTO
predate Respondent’s registration of the disputed domain name. Under Policy ¶ 4(a)(i), registration of a
mark with an appropriate governmental authority such as the USPTO confers
rights in that mark to Complainant.
Therefore, the Panel finds that Complainant has established rights in
the TUFTS mark pursuant to Policy ¶ 4(a)(i).
See Am. Online, Inc. v. Thomas P.
Culver Enters., D2001-0564 (WIPO
Respondent’s <tuftsgeek.com>
domain name incorporates Complainant’s TUFTS mark in its entirety and adds the
term “geek.” Complainant’s TUFTS mark
remains the dominant element in the disputed domain name, and the addition of
the term “geek” does not make it distinctive enough to avoid a finding of
confusing similarity. Therefore, the
Panel concludes that Respondent’s <tuftsgeek.com>
domain name is confusingly similar to Complainant’s TUFTS mark pursuant to
Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (
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 <tuftsgeek.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because of Respondent’s failure to respond to the Complaint, the panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. 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). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <tuftsgeek.com>
domain name. The WHOIS information
identifies Respondent as “Stevan Obradovic,” and
Complainant has alleged that Respondent does not have any established trademark
rights or goodwill associated with Complainant’s TUFTS mark. The Panel finds no other evidence in the
record suggesting that Respondent is commonly known by the disputed domain
name. Therefore, the Panel concludes
that Respondent is not commonly known by the <tuftsgeek.com>
domain name pursuant to Policy ¶ 4(c)(ii).
See Tercent Inc. v. Yi,
FA 139720 (Nat. Arb. Forum
Respondent is using the <tuftsgeek.com> domain name to redirect Internet users to Respondent’s website that commercially offers advice services for an hourly rate. Respondent is attempting to commercially benefit from the goodwill associated with Complainant’s TUFTS mark, and such use constitutes neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor 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.
Respondent recently offered to sell the <tuftsgeek.com> domain name registration
to Complainant. The Panel finds that
this provides evidence of bad faith registration and use pursuant to Policy ¶
4(b)(i). See Little Six, Inc. v.
Domain For
Respondent’s <tuftsgeek.com> domain name, which is confusingly similar to Complainant’s TUFTS mark, is likely to cause confusion among customers searching for information on Complainant’s university. Specifically, customers may become confused as to the affiliation, endorsement, or sponsorship of the advice services offered on Respondent’s website. Respondent is attempting to commercially benefit from the unauthorized use of Complainant’s mark. Therefore, the Panel finds that such registration and use of the disputed domain name constitutes bad faith pursuant to 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 Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
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 <tuftsgeek.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: February 19, 2007
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