Ameriprise Financial, Inc. v. Alca Bug
Claim Number: FA0705000990666
Complainant is Ameriprise Financial, Inc. (“Complainant”), represented by J.
Damon Ashcraft, of Snell & Wilmer L.L.P., One Arizona
Center, 400 E. Van Buren, Phoenix, AZ 85004-2202. Respondent is Alca Bug (“Respondent”), Plot
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ameriprisel.com>, registered with Fabulous.com Pty Ltd.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 21, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 21, 2007.
On
On May 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 13, 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@ameriprisel.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 <ameriprisel.com> domain name is confusingly similar to Complainant’s AMERIPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <ameriprisel.com> domain name.
3. Respondent registered and used the <ameriprisel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ameriprise Financial, Inc.,
is a leader in the financial services industry with over 110 years of experience
under various names. In May 2005,
American Express publicly announced the spin off of American Express Financial
Corporation into an independent company under the name Ameriprise Financial,
Inc. Complainant serves over 2.8 million
individual, business, and institutional clients with assets exceeding $466
billion. Complainant owns a trademark
registration with the United States Patent and Trademark Office (“USPTO”) for
the AMERIPRISE FINANCIAL PLANNING INVITATIONAL mark (Reg. No. 3,196,244 issued
Respondent registered the <ameriprisel.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 asserts rights in the AMERIPRISE FINANCIAL
PLANNING INVITATIONAL mark through registration with the USPTO. Although Complainant’s mark was not accepted for
registration by the USPTO until
Respondent’s <ameriprisel.com>
domain name is confusingly similar to Complainant’s AMERIPRISE FINANCIAL
PLANNING INVITATIONAL mark. Respondent’s
domain name contains the dominant feature of Complainant’s mark, the term
“ameriprise,” and adds the letter “l.” The
Panel finds that neither the omissions of the terms “financial,” “planning,”
and “invitational” nor the addition of the letter “l” is sufficient to properly
distinguish Respondent’s domain name from Complainant’s mark pursuant to Policy
¶ 4(a)(i). See American
Eagle Outfitters, Inc. v. Admin, FA 473826 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent does not have rights or legitimate interests in the <ameriprisel.com> domain name under Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case under the Policy, shifting the burden of proof from Complainant to Respondent. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (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).
Respondent is using the <ameriprisel.com> domain name for the purpose of redirecting Internet users to the <financeplanner.org> domain name. The resulting website prominently displays a link to Complainant’s own website along with links to other competing products such as “Financial Planning,” “Retire Early,” and “Retirement Calculator.” The Panel infers from Respondent’s use that it is collecting referral fees for each misdirected Internet user connected to a competing website. Such use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Ali Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name as the respondent is merely using the domain name to operate a website containing links to various competing commercial websites, which is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 5, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it is not using the domain name in connection with 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)).
Complainant contends that Respondent is not commonly known by the <ameriprisel.com> domain name. The WHOIS information listed in connection with the disputed domain name lists the registrant as “Alca Bug.” In the absence of evidence suggesting otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name for purposes of Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where, among other things, the respondent is not commonly known by the domain name in question).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant contends that Respondent is using the <ameriprisel.com> domain name to
connect Internet users to commercial websites offering services in direct
competition with Complainant’s own financial services. The Panel finds that Respondent’s use amounts
to disruption of Complainant’s business in violation of Policy ¶ 4(b)(iii) and is evidence of bad faith registration and
use. See
S. Exposure v. S. Exposure,
Inc., FA 94864 (Nat. Arb.
Forum
Furthermore, Complainant contends that Internet users will likely be confused when searching for Complainant’s legitimate website. The Panel infers that Respondent profits from such use and considers this as further evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See American 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.”).
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 <ameriprisel.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: June 25, 2007
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