American Century Proprietary Holdings, Inc. v. RevenueDirect
Claim Number: FA0703000934372
Complainant is American Century Proprietary Holdings, Inc. (“Complainant”), represented by Mark
A. Nieds, of Leydig, Voit & Mayer, Ltd.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americnacentury.com>, registered with Dotster.
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 March 8, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 8, 2007.
On March 9, 2007, Dotster confirmed by e-mail to the National Arbitration Forum that the <americnacentury.com> domain name is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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 March 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 3, 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@americnacentury.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 9, 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 <americnacentury.com> domain name is confusingly similar to Complainant’s AMERICAN CENTURY mark.
2. Respondent does not have any rights or legitimate interests in the <americnacentury.com> domain name.
3. Respondent registered and used the <americnacentury.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Century Proprietary Holdings, Inc., has continuously used the AMERICAN CENTURY mark since 1996 to refer to its financial and investment services. Complainant maintains a website at the <americancentury.com> domain name promoting its services. Complainant has over 1.5 million individual and institutional customers and spent more than $50 million in 2005 advertising its AMERICAN CENTURY mark.
Complainant has registered the AMERICAN CENTURY mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,084,652 issued July 29, 1997; Reg. No. 2,943,710 issued April 26, 2005), as well as the AMERICAN CENTURY BROKERAGE TELESELECT mark (Reg. No. 2,412,401 issued December 12, 2000).
Respondent’s <americnacentury.com> domain name, which it registered on August 4,
2006, resolves to a pay-per-click website containing links to financial and investment companies that compete with 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.
Because Complainant holds a trademark registration for the
AMERICAN CENTURY mark with the USPTO, Complainant has established rights in the
mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the
MICROSOFT mark through registration of the mark with the USPTO.”); see also Trip
Network Inc. v. Alviera, FA 914943
(Nat. Arb. Forum Mar. 27, 2007)
(finding that the complainants federal trademark registrations for the
CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights
in the mark pursuant to Policy ¶ 4(a)(i)).
The <americnacentury.com> domain name is simply a misspelled
version of Complainant’s AMERICAN CENTURY mark with the space between terms
omitted and the generic top-level domain (“gTLD”) “.com” appended to the end of
the mark. None of these alterations
sufficiently distinguishes the contested domain name from Complainant’s
mark. As a result, the Panel finds the <americnacentury.com> domain name
to be confusingly similar to the AMERICAN CENTURY mark under Policy ¶
4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum
Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the
complainant’s GOOGLE mark and noting that “[t]he transposition of two letters
does not create a distinct mark capable of overcoming a claim of confusing similarity,
as the result reflects a very probable typographical error”); see also Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that
the domain name <peir1.com> is confusingly similar to the complainant's
PIER 1 mark).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant bears the initial burden of proving that Respondent lacks rights and legitimate interests in the <americnacentury.com> domain name. After it has made a prima facie case, the burden shifts to Respondent to show that it does, in fact, have rights or legitimate interests in the domain name in dispute. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. 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 Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Because Respondent has not responded to this Complaint, the
Panel presumes that it has no rights to or legitimate interests in the domain name at issue. See Geocities v. Geocities.com, D2000-0326 (WIPO June 19, 2000)
(finding that the respondent has no rights or legitimate interests in the
domain name because the respondent never submitted a response or provided the
panel with evidence to suggest otherwise); see also Bank
of Am. Corp. v. McCall, FA 135012 (Nat.
Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in
its failure to meet its burden, but also will be viewed as evidence itself that
Respondent lacks rights and legitimate interests in the disputed domain
name.”). Nevertheless,
the Panel will now examine the record to determine if Respondent has rights or
legitimate interests under the factors listed in Policy ¶ 4(c).
Respondent has registered the <americnacentury.com> domain name as “RevenueDirect,” and there is no other evidence in
the record suggesting that Respondent is commonly known by the disputed domain name. Consequently, Respondent has not established
rights or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). See
Moreover, Respondent’s <americnacentury.com> domain name, which is confusingly similar to
Complainant’s AMERICAN CENTURY mark, resolves to a commercial-oriented website
featuring links to various financial-related websites, some of which compete
with Complainant. In Expedia,
Inc. v. Compaid, FA
520654 (Nat. Arb. Forum Aug. 30, 2005), the respondent used a domain
name confusingly similar to a complainant’s mark to maintain a website
featuring links to travel services that competed with the complainant. The panel in that case concluded that such
use was not 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).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has
registered and is using the <americnacentury.com> domain name for the primary purpose of disrupting
Complainant’s business, because the contested domain name resolves to a website
with links to Complainant’s competitors.
As a result, the Panel finds that Respondent has registered and is using
the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982
(Nat. Arb. Forum
Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to
attract Internet users to a directory website containing commercial links to
the websites of a complainant’s competitors represents bad faith registration
and use under Policy ¶ 4(b)(iii)); see
also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding
bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a
respondent used the disputed domain name to operate a commercial search engine
with links to the complainant’s competitors).
In addition, Respondent is using the confusingly similar <americnacentury.com> domain name to redirect Internet users seeking Complainant’s financial services to its own website that contains links to Complainant’s competitors. In Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000), the panel found that the respondent’s diversion of Internet users who were seeking the complainant’s website to its own website for commercial gain created “a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, endorsement, or affiliation of its website” and, therefore, provided evidence of bad faith registration and use in violation of Policy ¶ 4(b)(iv). Likewise, Respondent is taking advantage of consumer confusion as to the source, affiliation, sponsorship or endorsement of the <americnacentury.com> domain name and profiting from the goodwill associated with the AMERICAN CENTURY mark. The Panel finds that Respondent’s registration and use of the <americnacentury.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum Apr. 30, 2002) (“Complainants are in the music and entertainment business. The links associated with <billboard.tv> and <boogie.tv> appear to be in competition for the same Internet users, which Complainants are trying to attract with the <billboard.com> web site. There is clearly a likelihood of confusion between <billboard.tv> and BILLBOARD as to the source, sponsorship, affiliation, or endorsement of the web site or of a product or service on the web site.”).
Furthermore, Respondent is
engaged in typosquatting, for the <americnacentury.com>
domain name is a misspelled version of Complainant’s AMERICAN CENTURY mark,
meant to take advantage of the typographical errors of Internet users. Typosquatting constitutes bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006)
(“Respondent misspells the Mark with intent to intercept internet users from
Complainant’s web site, given the fact that Complainant’s website is a popular
website and the Disputed Domain Name is a misspelling of the Mark which is
highly likely to occur. This typosquatting is evidence of bad faith.”); see also Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005)
(finding that the respondent’s registration and use of the <nextell.com>
domain name was in bad faith because the domain name epitomized typosquatting
in its purest form).
The Panel concludes 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 <americnacentury.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 18, 2007
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