Avaya Inc. v. N/A et al.
Claim Number: FA1507001628532
Complainant: Avaya Inc. of Basking Ridge, New Jersey, United States of America.
Complainant Representative:
Complainant Representative: Shutts & Bowen LLP of Ft. Lauderdale, Florida, USA.
Respondent: N/A of Tehran, Tehran, International, AF.
Respondent Representative:
REGISTRIES and REGISTRARS
Registries: Tin Mill, LLC
Registrars: OnlineNIC, 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 Examiner in this proceeding.
Honorable Charles K. McCotter, Jr. (Ret.) as Examiner.
Complainant submitted: July 13, 2015
Commencement: July 21, 2015
Default Date: August 5, 2015
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly
similar to a word mark:
(i) for which the Complainant holds a valid national or regional registration and
that is in current use; or(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the time the
URS complaint is filed.
[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad
faith.
a. Registrant has registered or acquired the domain name primarily for the
purpose of selling, renting or otherwise transferring the domain name
registration to the complainant who is the owner of the trademark or service
mark or to a competitor of that complainant, for valuable consideration in excess
of documented out-of pocket costs directly related to the domain name; or
b. Registrant has registered the domain name in order to prevent the
trademark holder or service mark from reflecting the mark in a corresponding
domain name, provided that Registrant has engaged in a pattern of such
conduct; or
c. Registrant registered the domain name primarily for the purpose of
disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract
for commercial gain, Internet users to Registrant’s web site or other on-line
location, by creating a likelihood of confusion with the complainant’s mark as
to the source, sponsorship, affiliation, or endorsement of Registrant’s web
site or location or of a product or service on that web site or location.
FINDINGS OF FACT
IDENTICAL OR CONFUSINGLY SIMILAR
Complainant, Avaya Inc., is in the telecommunications business providing hardware and software business management and consulting services worldwide. The Complainant owns U.S. and international registrations incorporating the AVAYA mark. The AVAYA mark has been used worldwide since at least 2000. The AVAYA mark is also verified with the Trademark Clearinghouse. AVAYA is the dominant element of the <avaya.center> domain name. Respondent has merely added the .center domain extension to the AVAYA mark. Accordingly, Complainant has rights in the AVAYA mark by virtue of its numerous registrations and its extensive and continuous worldwide use. Thus, pursuant to URS Procedure 1.2.6.1(i), the domain name is confusingly similar to the word mark for which Complainant has rights.
RIGHTS OR LEGITIMATE INTERESTS
Respondent has no rights or interest to the <avaya.center> domain name. The domain name was created in May 2015, long after Complainant established its rights and secured registrations to the AVAYA mark. According to the WhoIs database, the registrant is Ali Parsa, who has no legal affiliation with Complainant or any of the products and services provided by Complainant used in association with the AVAYA mark. Complainant has not authorized or licensed Respondent to use the AVAYA mark. Thus, Respondent has no right to the domain name pursuant to URS Procedure 1.2.6.2.
REGISTRATION AND USE IN BAD FAITH
Respondent registered and uses the domain name in bad faith. The domain name was registered for the purpose of disrupting the business of a competitor. Complainant’s business is disrupted when consumers, seeking Complainant’s products and services, find Respondent’s website offering identical products and services. Such disruption constitutes bad faith under URS Procedure 1.2.6.3.c. The disputed domain name has resolved to a website offering Complainant’s products and services. Respondent’s website uses actual images from Complainant’s website. Respondent uses the domain name to trade on the goodwill and reputation of AVAYA mark. By using the domain name, Respondent is intentionally attempting to attract for commercial gain, Internet users to its website by creating a likelihood of confusion with the AVAYA mark. Such use also constitutes bad faith under URS Procedure 1.2.6.3.d.
After reviewing the Complainant’s submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name be SUSPENDED for the duration of the registration.
<avaya.center>
Honorable Charles K. McCotter Jr., (Ret.), Examiner
Dated: August 06, 2015
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