The American National Red Cross v. Ms MDM
Claim Number: FA0702000909826
Complainant is The American National Red Cross (“Complainant”), represented by Keith
Barritt, of Fish & Richardson,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <redcrosss.org>, registered with Go Daddy Software.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 2, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 5, 2007.
On February 5, 2007, Go Daddy Software confirmed by e-mail to the National Arbitration Forum that the <redcrosss.org> domain name is registered with Go Daddy Software and that Respondent is the current registrant of the name. Go Daddy Software has verified that Respondent is bound by the Go Daddy Software 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 February 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 26, 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@redcrosss.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 7, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <redcrosss.org> domain name is confusingly similar to Complainant’s RED CROSS mark.
2. Respondent does not have any rights or legitimate interests in the <redcrosss.org> domain name.
3. Respondent registered and used the <redcrosss.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The American Red Cross, works with a global
network, “National Societies,” in 175 countries where it provides relief
services to those affected by natural or man-made disasters, including fires,
hurricanes, floods, earthquakes, tornados, hazardous material spills,
transportation accidents, and explosions.
In addition, Complainant collects blood donations for hospitals and is
the steward for more than half of the
Respondent registered the <redcrosss.org> domain name on October 22, 2004. Respondent’s domain name resolves to a website that contains links to first-aid certification programs, disaster relief funds, and various other commercial websites.
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 asserts statutory rights in the RED CROSS
mark. Under 18 U.S.C. §706, the U.S.
Congress has provided federal statutory protection of the RED CROSS mark. The Panel finds that Complainant has established
rights in the well-known mark for purposes of Policy ¶ 4(a)(i). See Am. Nat’l Red Cross v. Domains, FA
143684 (Nat. Arb. Forum Mar. 4, 2003) (finding rights in the RED CROSS mark
through
Respondent’s <redcrosss.org> domain name is
confusingly similar to Complainant’s well-known RED CROSS mark. Respondent’s domain name contains Complainant’s
mark in its entirety and merely adds the letter “s” and the generic top-level
domain (“gTLD”) “.org.” The Panel finds
that neither addition succeeds in distinguishing Respondent’s domain name from
Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Cream Pie Club v. Halford, FA
95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that “the addition of an ‘s’ to
the end of the complainant’s mark, ‘Cream Pie’ does not prevent the likelihood
of confusion caused by the use of the remaining identical mark. The domain name
<creampies.com> is similar in sound, appearance, and connotation”); see also Nat’l Geographic Soc’y v.
Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that
the domain name <nationalgeographics.com> was confusingly similar to the
complainant’s NATIONAL GEOGRAPHIC 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 contends that Respondent does not have rights or legitimate interests in the <redcrosss.org> domain name. The Panel finds that Complainant’s assertion in this instance is enough to establish a prima facie case, shifting the burden from Complainant to Respondent to show that Respondent does have rights or legitimate interests under Policy ¶ 4(a)(ii). See 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 has no right or legitimate interest is sufficient to shift the burden of proof to the 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 the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent is using the <redcrosss.org> domain name to operate a website that features links to various commercial websites, some of which are related to Complainant. The Panel infers from Respondent’s use that it is collecting referral fees for each misdirected Internet user. The Panel finds that such use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
Moreover, Complainant has been granted exclusive rights to the RED CROSS mark by the U.S. Congress in 18 U.S.C. §706. In Int'l Olympic Comm. v. Ritchey, FA 128817 (Nat. Arb. Forum Jan. 20, 2003), the panel held that the Olympic Amateur Sports Act, granting the complainant exclusive rights in the Olympic symbol and the word Olympic, preempted any chance for the respondent to claim rights or legitimate interests in an infringing domain name. Similarly, in Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003), the panel found that Congress’ statutory grant of protection in the RED CROSS mark precluded a finding of rights and legitimate interests by the respondent. In the matter at hand, the Panel finds that Respondent does not have rights or legitimate interests in the RED CROSS mark under Policy ¶ 4(a)(ii).
Finally, no evidence has been
presented that Respondent is commonly known by the <redcrosss.org> domain name. The WHOIS information lists the registrant as
“Ms MGM.” In the absence of evidence
suggesting otherwise, the Panel finds that Respondent has not established
rights or legitimate interests under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the
disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”);
see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec.
22, 2003) (“Respondent has registered the domain name under the name
‘Ilyoup Paik a/k/a David Sanders.’ Given
the WHOIS domain name registration information, Respondent is not commonly
known by the [<awvacations.com>] domain name.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <redcrosss.org> domain name to
operate a website that features links to various related and unrelated
commercial websites, presumably for the purpose of collecting referral
fees. The Panel finds that Internet
users searching for Complainant’s legitimate website will likely be confused
when stumbling upon Respondent’s website as to Complainant’s sponsorship of or
affiliation with the resulting website.
Such use is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).
See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration
and use of a domain name that incorporates another's mark with the intent to
deceive Internet users in regard to the source or affiliation of the domain
name is evidence of bad faith.”); see also G.D. Searle &
Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002)
(finding that the respondent registered and used the domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly
similar domain name to attract Internet users to its commercial website).
Finally, as discussed above, Complainant’s
statutory rights in the RED CROSS mark prevents a finding of rights and
legitimate interests in an identical or confusingly similar domain name. Similarly, Complainant’s exclusive statutory
rights in the mark establish Respondent’s bad faith in the registration and use
of the <redcrosss.org>
domain name pursuant to Policy ¶ 4(a)(iii). See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“As both parties are
residents of the
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 <redcrosss.org> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 13, 2007
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