Claim Number: FA0901001240597
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <baylorlambdas.com>, registered with Black Ice Domains, 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 Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 3, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is a Baptist university located in
Complainant registered the BAYLOR service mark (Reg. No.
1,465,910) with the United States Patent and Trademark Office (“USPTO”) on
In 1997, the national Asian American fraternity Lambda Phi Epsilon established a chapter on the Baylor campus.
From that time to the present, that Lambda Phi Epsilon chapter has taken part in Complainant’s campus-wide fellowship and leadership activities.
Respondent has no license or agreement with Complainant authorizing Respondent to use the BAYLOR mark.
Respondent registered the <baylorlambdas.com>
domain name on
The <baylorlambdas.com> domain name resolves to a website that lists links to websites related and unrelated to Complainant.
Some of the related links belong to third parties who compete directly with the business of Complainant.
On
In addition, Respondent has been the respondent in three
other cases through the National Arbitration Forum in which the disputed domain
names were transferred from Respondent to the complainants in those cases. See
Harrah's License Co., LLC v. sysadmin admin c/o balata.com ltd, FA 1107042
(Nat. Arb. Forum
Respondent’s <baylorlambdas.com> domain name is confusingly similar to Complainant’s BAYLOR mark.
Respondent does not have any rights to or legitimate interests in the domain name <baylorlambdas.com>.
Respondent registered and uses the <baylorlambdas.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of the BAYLOR service mark with
the USPTO establishes its rights in the mark for purposes of Policy ¶ 4(a)(i). See Miller Brewing
The <baylorlambdas.com> domain name consists of
Complainant’s BAYLOR mark, the generic word “lambdas,” and the generic
top-level domain (gTLD) “.com.” The
inclusion of a gTLD is irrelevant to a Policy ¶ 4(a)(i)
analysis. See Gardline Surveys Ltd. v. Domain Fin. Ltd.,
FA 153545 (Nat. Arb. Forum
The
addition of a top-level domain is irrelevant when establishing whether or not a
mark is identical or confusingly similar, because top-level domains are a
required element of every domain name.
The generic word “lambdas” is a term applied to members of Complainant’s
fraternity Lambda Phi Epsilon. Given the
association of the fraternity with Complainant, the inclusion of “lambdas” in
the disputed domain name increases the confusing similarity of the <baylorlambdas.com>
domain name with Complainant’s BAYLOR mark.
See Chanel, Inc. v. Cologne Zone,
D2000-1809 (WIPO
[T]he
salient feature of the Domain Names, is identical to a mark in which
Complainant has shown prior rights. The
addition of the generic term, “perfumes” is not a distinguishing feature, and
in this case seems to increase the likelihood of confusion because it is an apt
term for Complainant’s business.
See also Whitney Nat’l
Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum
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).
Therefore, the Panel finds that the <baylorlambdas.com> domain name is confusingly similar to Complainant’s BAYLOR mark pursuant to Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights to or legitimate interests in the
disputed domain name. Once Complainant
has done so, the burden shifts to Respondent to show that it does indeed have
rights to or legitimate interests in the disputed domain name, whether pursuant
to the guidelines in Policy ¶ 4(c) or otherwise. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
Forum
It
is well established that, once a complainant has made out a prima facie case in
support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.
Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no
rights to or legitimate interests in the <baylorlambdas.com>
domain name pursuant to Policy ¶ 4(a)(ii). Because no response was submitted in this
case, we may presume that Respondent has no rights to or legitimate interests
in the disputed domain name. See G.D.
Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Respondent’s
failure to respond means that Respondent has not presented any circumstances that
would promote its rights or legitimate interests in the subject domain name
under Policy ¶ 4(a)(ii).
However, we will nonetheless
examine the record in consideration of the factors listed in Policy ¶ 4(c) to
determine if there is any basis for concluding that Respondent has such rights
or interests.
We begin by noting that, under Policy ¶ 4(c)(ii), if Respondent demonstrates that it is commonly known
by the disputed domain name, it will have demonstrated rights to or legitimate
interests in the domain. Because we find
no evidence in the record suggesting that Respondent is commonly known by the <baylorlambdas.com>
domain name, and because Complainant asserts, and Respondent does not deny,
that Respondent has no license or agreement with Complainant authorizing
Respondent to use the BAYLOR mark, while the pertinent WHOIS information
identifies Respondent as “Sysadmin Admin c/o Balata.com Ltd.”, we conclude that
Respondent has not established rights or legitimate interests in the disputed
domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum
We also observe that Respondent may prove that it has rights
to or legitimate interests in the disputed domain name by showing that the
domain is being used in connection with a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). In this connection, there is no dispute as to
Complainant’s allegation to the effect that the contested domain name is being
used to direct Internet users to a parking website with a list of links to
third-party websites. In the circumstances, we may presume that Respondent
obtains fee income from the placement of these links. Using a domain name that is confusingly
similar to Complainant’s mark to direct Internet users to a list of commercial links
is neither a bona fide offering of
goods or services nor a legitimate noncommercial or fair use of the domain. Therefore, we conclude that Respondent does not
have rights to or legitimate interests in the disputed domain name pursuant to
Policy ¶¶ 4(c)(i) or (iii). See Bank of Am.
Corp. v. Nw. Free Cmty. Access,
FA 180704 (Nat. Arb. Forum
Sept. 30, 2003):
Respondent's demonstrated intent to divert Internet users
seeking Complainant's website to a website of Respondent and for Respondent's
benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii).
See also Computer
Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum
The Panel therefore finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has made no effort to refute Complainant’s
assertions that, on April 11, 2008, the National Arbitration Forum transferred
the <ihatebaylor.com> domain name from Respondent to Complainant (see Baylor Univ. v. Sysadmin Admin c/o
Balata.com Ltd, FA 1153718 (Nat. Arb. Forum
We also take into consideration that Respondent is using the
<baylorlambdas.com> domain name to resolve to a website that
contains links to third-party websites, some of which compete directly with the
business of Complainant. This is further
evidence of bad faith registration and use of the disputed domain name pursuant
to Policy ¶ 4(b)(iii).
See Puckett, Individually v.
Miller, D2000-0297 (WIPO
Finally under this heading, we take notice of the undisputed
allegation of the Complaint that the website that resolves from the <baylorlambdas.com>
domain name displays advertisements and links to sites that are both related
and unrelated to Complainant’s BAYLOR mark.
We presume from this that Respondent receives pay-per-click fees for Internet
users’ visits to these links and related advertisements. Because the disputed domain name is
confusingly similar to Complainant’s mark, Internet users are likely to become
confused as to Complainant’s possible affiliation with or sponsorship of the disputed
domain name and resolving website.
Respondent thus seeks to profit from this confusion by hosting
pay-per-click advertising on the resolving website. This is evidence of bad faith registration
and use of the disputed domain pursuant to Policy ¶ 4(b)(iv).
See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum
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.
See also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO
The Panel thus finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <baylorlambdas.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 17, 2009
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