Eastman Credit Union v. Domain Manager / samirnet -domain names for sale
Claim Number: FA1711001760463
Complainant is Eastman Credit Union (“Complainant”), represented by Wade R. Orr of LUEDEKA NEELY GROUP, P.C., Tennessee, USA. Respondent is Domain Manager / samirnet -domain names for sale (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eastmancreditunion.org>, registered with !#No1Registrar, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 29, 2017; the Forum received payment on November 28, 2017.
On December 21, 2017, !#No1Registrar, LLC confirmed by e-mail to the Forum that the <eastmancreditunion.org> domain name is registered with !#No1Registrar, LLC and that Respondent is the current registrant of the name. !#No1Registrar, LLC has verified that Respondent is bound by the !#No1Registrar, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@eastmancreditunion.org. Also on December 7, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 29, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
Complainant is a U.S.-based financial institution providing financial services to its members. Complainant uses the EASTMAN CREDIT UNION mark in conjunction with its business practices. Complainant registered the EASTMAN CREDIT UNION mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,039,352, registered Jan. 10, 2006). Respondent’s <eastmancreditunion.org> is identical to Complainant’s EASTMAN CREDIT UNION mark because it incorporates the mark in its entirety, eliminating spaces and adding the “.org” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in <eastmancreditunion.org>. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the EASTMAN CREDIT UNION mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <eastmancreditunion.org> resolves to a parked webpage offering links to websites in direct competition with Complainant, presumably for Respondent’s financial gain.
Respondent registered and is using <eastmancreditunion.org> in bad faith. The disputed domain name attracts internet users to Respondent’s website for commercial gain, diverting users to links in direct competition with Complainant. Additionally, Respondent is offering <eastmancreditunion.org> for sale to the general public. Respondent registered <eastmancreditunion.org> with constructive and/or actual knowledge of Complainant and its rights to the EASTMAN CREDIT UNION mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Eastman Credit Union (“Complainant”), of Kingsport, TN, USA. Complainant is the owner of the domestic registration for the mark EASTMAN CREDIT UNION, which the Complainant has continuously used since at least as early as 1986 in connection with its provision of financial services and credit unions.
Respondent is Domain Manager / samirnet -domain names for sale, of Bangalore, India. Respondent’s regsitrar’s address is listed as Netanya, Israel. The Panel notes that Respondent registered <eastmancreditunion.org> on or about June 9, 2017.
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."
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.
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(f), 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 (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.”).
Complainant is a U.S.-based financial institution providing financial services to its members. Complainant uses the EASTMAN CREDIT UNION mark in conjunction with its business practices. Complainant registered the EASTMAN CREDIT UNION mark with the USPTO (e.g., Reg. No. 3,039,352, registered Jan. 10, 2006). Registrations of a mark with the USPTO are sufficient to show rights in the mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). The Panel here finds that Complainant’s registration with the USPTO is sufficient to show rights in the EASTMAN CREDIT UNION mark.
Complainant asserts that Respondent’s <eastmancreditunion.org> is identical to Complainant’s EASTMAN CREDIT UNION mark because it incorporates the mark in its entirety, eliminating spaces and adding the “.org” gTLD. The elimination of spaces and the addition of a gTLD do not adequately distinguish a disputed domain name from the original mark. See Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). The Panel here finds that Respondent’s <eastmancreditunion.org> is identical to Complainant’s EASTMAN CREDIT UNION mark.
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant asserts that Respondent does not have rights or legitimate interests in <eastmancreditunion.org>. Complainant provides evidence that the WHOIS information associated with this case identifies Respondent as “Domain Manager” or “samirnet –domain names for sale.” The respondent is not commonly known by the disputed domain name where there is no evidence in the record, including the WHOIS information, suggesting that the respondent is commonly known by that name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006). Therefore, “[g]iven the WHOIS contact information for the disputed domain [name],” the Panel may “infer that Respondent . . . is not commonly known by the [disputed domain name] in any derivation.” Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003). The Panel here finds that Respondent is not commonly known by the disputed domain name.
Complainant avers it has not authorized or licensed Respondent to use the EASTMAN CREDIT UNION mark in any regard, nor is Respondent affiliated with Complainant. Complainant contends that Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. In support of its contention, Complainant indicates that Respondent’s <eastmancreditunion.org> resolves to a parked webpage offering links to websites in direct competition with Complainant, presumably for Respondent’s financial gain. Where the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” panels have found that the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use. H-D Michigan Inc. v. Buell, FA 1106640 (Forum Jan. 2, 2008); Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). The Panel here finds that Respondent does not have rights or legitimate interests in <eastmancreditunion.org> pursuant to Policy ¶¶ 4(c)(i) and (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant maintains that Respondent registered and is using <eastmancreditunion.org> in bad faith. Complainant argues that the disputed domain name attracts internet users to Respondent’s website for commercial gain, diverting users to links in direct competition with Complainant. The use of a disputed domain name to host links to websites in direct competition of a complainant evinces bad faith registration and use. See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Additionally, Respondent is offering <eastmancreditunion.org> for sale to the general public. The sale of a disputed domain name supports bad faith registration and use. See Staples, Inc. v. lin yanxiao, FA1505001617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”). The Panel here finds that Respondent registered and is using <eastmancreditunion.org> in bad faith under the Policy.
Respondent registered <eastmancreditunion.org> with actual knowledge of Complainant and its rights to the EASTMAN CREDIT UNION mark. Panels have found “actual knowledge through the name used for the domain and the use made of it.” Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014). Based on Respondent’s use of Complainant’s identical mark the circumstances indicate that Respondent had actual knowledge of Complainant's mark when it registered <eastmancreditunion.org>, and thus registered and used the domain name in bad faith.
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <eastmancreditunion.org> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 12, 2018
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