Amplify Federal Credit Union v. Domain Park Limited a/k/a hostmaster hostmaster
Claim Number: FA0811001235241
Complainant is Amplify Federal Credit Union (“Complainant”), represented by Dwayne
K.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <goamplify.org>, registered with Moniker Online Services Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her 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 November 20, 2008; the National Arbitration Forum received a hard copy of the Complaint on November 24, 2008.
On November 21, 2008, Moniker Online Services Inc. confirmed by e-mail to the National Arbitration Forum that the <goamplify.org> domain name is registered with Moniker Online Services Inc. and that Respondent is the current registrant of the name. Moniker Online Services Inc. has verified that Respondent is bound by the Moniker Online Services Inc. 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 November 26, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 16, 2008 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@goamplify.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 22, 2008, 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 <goamplify.org> domain name is confusingly similar to Complainant’s AMPLIFY mark.
2. Respondent does not have any rights or legitimate interests in the <goamplify.org> domain name.
3. Respondent registered and used the <goamplify.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Amplify Federal Credit Union, is a credit union
based in
Respondent’s <goamplify.org> domain name was registered on August 22, 2007 and currently resolves to a search engine and commercial links page that redirects Internet users to unrelated third parties. Additionally, Respondent has been the subject of previous UDRP proceedings in which the then-subject domain names were transferred away from Respondent. See, e.g., Sears Brand, LLC v. Domain Park Ltd., FA 1218779 (Nat. Arb. Forum Sept. 23, 2008); see also Diners Club Int’l Ltd. v. Domain Park Ltd., FA 1211556 (Nat. Arb. Forum Aug. 7, 2008).
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.
The Panel finds that Complainant has sufficiently
established rights in the AMPLIFY mark dating back to the filing date through
registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See
Lockheed Martin Corp. v. Hoffman,
FA 874152 (Nat. Arb.
Forum Jan. 31, 2007) (finding that the complainant had sufficiently established
rights in the SKUNK WORKS mark through its registration of the mark with the
USPTO); see also Hershey Co. v. Reaves, FA 967818 (Nat. Arb.
Forum June 8, 2007) (“Complainant asserts rights in the KISSES trademark
through registration of the mark with the…USPTO…As such rights date back to the filing date of the trademark application
and predate Respondent’s registration…Complainant has established rights in the
KISSES mark for purposes of satisfying Policy ¶ 4(a)(i).”).
Respondent’s <goamplify.org> domain name
contains Complainant’s AMPLIFY mark followed by the generic top-level domain
(“gTLD”) “.org.” Additionally, the disputed domain name precedes Complainant’s mark
with the generic term “go.” Complainant’s <goamplify.com> domain name is
identical to the disputed domain name but for the different gTLD “.com.” The
<goamplify.com> domain name is Complainant’s homepage for the AMPLIFY
mark. First, the Panel considers, in accordance with previous UDRP precedent,
that Respondent’s incorporation of the gTLD “.org” is irrelevant to a Policy ¶
4(a)(i) analysis. See
Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27,
2007) (concluding that the addition of a gTLD, whether it be “.com,” “.net,”
“.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i)
analysis). Moreover, the Panel finds the use of the term “go” with
Complainant’s mark to be an inconsequential difference because, in
consideration of Complainant’s use of the <goamplify.com> domain name,
the addition of the term has an obvious relationship to Complainant’s business
– it renders the disputed domain name almost identical to Complainant’s
homepage. For these reasons, the Panel finds that the <goamplify.org>
domain name is confusingly similar to Complainant’s AMPLIFY mark pursuant to
Policy ¶ 4(a)(i). See Am.
Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7,
2004) (finding the respondent’s <amextravel.com> domain name confusingly
similar to Complainant’s AMEX mark because the “mere addition of a generic or
descriptive word to a registered mark does not negate” a finding of confusing
similarity under Policy ¶ 4(a)(i)); see
also Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30,
2007) (“The additions of generic words with an obvious relationship to
Complainant’s business and a gTLD renders the disputed domain name confusingly
similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Before the Panel may proceed to consider the Complaint under
Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent lacks
rights and legitimate interests in the disputed domain name. See VeriSign Inc. v. VeneSign
Respondent has failed to reply to the Complaint. Therefore,
the Panel may presume that Respondent lacks all rights and legitimate interests
in the disputed domain name. Nevertheless, the Panel will proceed to examine
the record in consideration of the elements listed under Policy ¶ 4(c). See 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.”); see also Vanguard
Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding
that because Respondent failed to submit a Response, “Complainant’s submission
has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel
accepts as true all reasonable allegations . . . unless clearly contradicted by
the evidence.”).
Complainant contends that Respondent is not authorized or
otherwise permitted to use the AMPLIFY mark in any way. Additionally, the WHOIS
information identifies Respondent solely as “Domain Park Limited a/k/a
hostmaster hostmaster.” Without any further information in the record, the
Panel finds that Complainant is not commonly known by the <goamplify.org>
domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA
715089
(Nat. Arb. Forum July 17, 2006) (concluding that the
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the WHOIS information,
suggesting that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the
respondent was not commonly known by the <lilpunk.com> domain name as
there was no evidence in the record showing that the respondent was commonly
known by that domain name, including the WHOIS information as well as the
complainant’s assertion that it did not authorize or license the respondent’s
use of its mark in a domain name).
The <goamplify.org> domain name resolves to a
general commercial search engine and links page. The links redirect Internet
users to unrelated third-parties. The Panel finds that this use of a
confusingly similar disputed domain name 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
Bank of Am. Fork v. Shen,
FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s
use of a domain name to redirect Internet users to websites unrelated to a
complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Persohn v. Lim, FA 874447 (Nat.
Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed
domain name in connection with a bona
fide offering of goods or services or a legitimate noncommercial or fair
use by redirecting Internet users to a commercial search engine website with
links to multiple websites that may be of interest to the complainant’s
customers).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has been the subject of numerous previous UDRP
proceedings in which the subject domain names were transferred away from
Respondent. See, e.g., Sears Brand, LLC
v. Domain Park Ltd., FA 1218779
(Nat. Arb. Forum Sept. 23, 2008); see
also Diners Club Int’l Ltd. v. Domain Park Ltd., FA 1211556 (Nat. Arb.
Forum Aug. 7, 2008). The Panel finds that this history establishes that
Respondent is engaging in a pattern of registering infringing domain names. As
a result, the Panel determines that this creates a rebuttable presumption that
Respondent has registered and is using the <goamplify.org> domain
name in bad faith pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v.
Moreover, the disputed domain name resolves to a commercial
search engine and links page that redirects Internet users to various unrelated
third parties. The Panel presumes that this use commercially benefits
Respondent through some form of referral fee. Considering this use in
conjunction with the confusing similarity of the disputed domain name with
Complainant’s mark, the Panel finds further evidence that Respondent registered
and is using the <goamplify.org> domain name in bad faith pursuant
to Policy ¶ 4(b)(iv). See
MySpace, Inc. v. Myspace Bot,
FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent
registered and used the <myspacebot.com> domain name in bad faith by
diverting Internet users seeking the complainant’s website to its own website
for commercial gain because the respondent likely profited from this diversion
scheme); see also Williams-Sonoma, Inc.
v. Fees, FA 937704 (Nat. Arb.
Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name
to display links to various third-party websites demonstrated bad faith
registration and use pursuant to Policy ¶ 4(b)(iv)); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA
948436 (Nat. Arb. Forum May 16, 2007) (concluding that Internet users would
likely be confused as to the source or sponsorship of the
<blackstonewine.com> domain name with the complainant because the
respondent was redirecting Internet users to a website with links unrelated to
the complainant and likely receiving click-through fees in the process).
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 <goamplify.org> domain name be TRANSFERRED from Respondent to Complainant.
James A Crary, Panelist
Dated: January 2, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum