Claim Number: FA0705000981557
Complainant is Alliance for Affordable Services (“Complainant”), represented by John
R. Strout, of Law Offices of Webster, Chamberlain &
Bean,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allianceforaffordableservices.com>, registered with Rebel.com.
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. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 10, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 11, 2007.
On May 14, 2007, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <allianceforaffordableservices.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.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 May 21, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 11, 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@allianceforaffordableservices.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 14, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary 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 <allianceforaffordableservices.com> domain name is identical to Complainant’s ALLIANCE FOR AFFORDABLE SERVICES mark.
2. Respondent does not have any rights or legitimate interests in the <allianceforaffordableservices.com> domain name.
3. Respondent registered and used the <allianceforaffordableservices.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alliance for
Affordable Services, is a not-for-profit organization dedicated to helping
provide savings on health care and other benefits and services to its over
150,000 members. Since 1981, Complainant
has been promoting the interests of small businesses by providing an assortment
of goods and services to benefit its members nationwide. Complainant has registered the ALLIANCE
FOR AFFORDABLE SERVICES mark with the United
States Patent and Trademark Office (“USPTO”) (Reg. No. 2,282,736 issued October
5, 1999).
Respondent registered the <allianceforaffordableservices.com> domain name on November 4, 2005. Respondent is using the disputed domain name to display a directory of links to third-party websites that offer competing products and services to Complainant.
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.
Through its registration of the ALLIANCE FOR AFFORDABLE
SERVICES mark with the USPTO, Complainant has established rights in the mark
pursuant to Policy ¶
4(a)(i). See Expedia,
Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007)
(“Complainant’s trademark registrations with the USPTO adequately demonstrate
its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26,
2006) (finding that the complainant established rights in the PENTIUM, CENTRINO
and INTEL INSIDE marks by registering those marks with the USPTO).
The <allianceforaffordableservices.com>
domain name is identical to Complainant’s ALLIANCE FOR AFFORDABLE SERVICES
mark. The disputed domain name fully
incorporates Complainant’s mark, eliminates the spaces between the terms, and
adds the generic top-level domain (“gTLD”) “.com.” Since these trivial alterations are purely
functional, they are irrelevant to a Policy ¶ 4(a)(i)
analysis. Therefore, the Panel finds the
mark and disputed domain name to be identical under Policy ¶ 4(a)(i). See Gerber
Childrenswear Inc. v. Webb, D2007-0317 (WIPO Apr. 24, 2007) (“Well-established UDRP precedent . . . holds that the
addition of a gTLD, the deletion of spaces or other such trifling changes are
utterly de minimus, if not completely irrelevant, in assessing
identicality/confusing similarity and thus [are] totally ignored.”); see also Towmaster, Inc. v. Hale, FA 973506
(Nat Arb. Forum June 4, 2007) (finding the <bigtow.com> domain name to be
identical to the complainant’s BIG TOW mark).
Complainant contends that Respondent has no rights or legitimate interests in the <allianceforaffordableservices.com> domain name. Therefore, Complainant has made a prima facie case in support of its allegations and the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Since Respondent failed to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make out a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to a respondent to show that it does have rights or legitimate interests in a domain name); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). However, the Panel will now examine the evidence to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the <allianceforaffordableservices.com> domain name, which is
identical to Complainant’s ALLIANCE FOR AFFORDABLE SERVICES mark, to divert Internet users to
a website consisting solely of links to websites that offer competing services
to Complainant. As a result,
Respondent is not offering any goods or services on its website. Use of the disputed domain name in such a manner does not
constitute a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i), or a legitmate noncommercial or fair use of
the domain name pursuant to Policy ¶ 4(c)(iii). See Charles
Letts & Co. v. Citipublications, FA 692150 (Nat. Arb. Forum July
17, 2006) (finding that the respondent’s use of a domain name that was
confusingly similar to the complainant’s mark to display links to the
complainant’s competitors did not constitute a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i), or a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); 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, the Panel finds that Respondent is not commonly
known by the disputed domain name under Policy ¶ 4(c)(ii)
because Respondent’s WHOIS information, as well as other information in the
record, does not suggest that Respondent is commonly known by the <allianceforaffordableservices.com>
domain name. See M.
Shanken Commc’ns, Inc. v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent is
not commonly known by the <cigaraficionada.com> domain name because the
WHOIS information lists the registrant of the domain name as as
“WORLDTRAVELERSONLINE.COM,” and no other evidence exists in the record
indicating that the respondent is known by the domain name); 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 Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using a domain name that is identical to
Complainant’s ALLIANCE FOR AFFORDABLE SERVICES mark to operate a “links page”
website offering competing products and services. The Panel finds such use indicates bad faith
under Policy ¶ 4(b)(iii) because it appears that
Respondent has registered and is using the <allianceforaffordableservices.com>
domain name for the primary purpose of disrupting Complainant’s business. See Societé Air France v. MSA, Inc., D2007-0143 (WIPO Apr. 19, 2007)
(“Respondent registered and has used the domain name to disrupt Complainant’s
business...by redirecting traffic to what appeared to be competitive products
and services, and thereby confusing Complainant’s customers….”); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (“Respondent’s use of the
domain name in dispute to advertise its goods and services of Complainant’s
competitors disrupts Complainant’s business by diverting potential customers of
Complainant to Respondent’s website.
Respondent’s registration and use in this manner is in bad faith
pursuant to Policy ¶ 4(b)(iii).”).
Respondent is using the <allianceforaffordableservices.com> domain name to divert Internet users seeking Complainant’s products and services to a website containing links offering competing products and services. Presumably, Respondent is collecting pay-per-click fees for diverting Internet users to the third-party websites. Therefore, Respondent is profiting from the goodwill of Complainant’s mark by taking advantage of the confusing similarity between Respondent’s domain name and the mark. The Panel finds such use of the disputed domain name to be evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where a respondent diverted Internet users searching for a complainant to its own website and likely profited from click-through fees); see also The Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allianceforaffordableservices.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: June 25, 2007
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