American Century Proprietary Holdings, Inc. v. Travis Martin
Claim Number: FA0905001262486
Complainant is American
Century Proprietary Holdings, Inc. (“Complainant”), represented by Michelle
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americancenturt.com>, registered with Dynadot, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 13, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 14, 2009.
On May 13, 2009, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <americancenturt.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 May 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 3, 2009 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@americancenturt.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 9, 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 the owner of the AMERICAN CENTURY trademark, which is registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 2,084,652, issued July 29, 1997).
Complainant uses the AMERICAN CENTURY mark in connection with the marketing of its mutual fund investment services.
Respondent registered the <americancenturt.com> domain name on October 6, 2008.
Respondent uses the disputed domain name to resolve to a parked website containing click-through links to websites of Complainant’s business competitors.
Respondent’s <americancenturt.com> domain name is confusingly similar to Complainant’s AMERICAN CENTURY mark.
Respondent does not have any rights to or legitimate interests in the domain name <americancenturt.com>.
Respondent registered and uses the <americancenturt.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 trademark 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 July 31, 2000) (holding that a 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:
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 has established rights in its AMERICAN CENTURY trademark
pursuant to Policy ¶ 4(a)(i) through its registration of
the mark with the USPTO. 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
Complainant contends that Respondent’s <americancenturt.com> domain name is confusingly similar to Complainant’s AMERICAN CENTURY mark under Policy ¶ 4(a)(i). The disputed domain name contains the distinctive portion of Complainant’s mark, with the mere substitution of the letter “y” with the letter “t” and the addition of the generic top-level domain “.com.” Substitution of the single letter “t” renders Respondent’s <americancenturt.com> domain name confusingly similar to Complainant’s AMERICAN CENTURY mark. Similarly, affixation of the generic top-level domain “.com” is irrelevant for the purposes of a Policy ¶ 4(a)(i) analysis. See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (finding that a respondent’s disputed domain names were confusingly similar to a complainant’s mark because the disputed domain names were common misspellings of the mark); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of a complainant’s NEIMAN MARCUS mark that was confusingly similar to the mark); further see Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s AMERICAN CENTURY mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights to and legitimate interests in the <americancenturt.com> domain name. For purposes of a Policy ¶ 4(a)(ii) analysis, Complainant must present a prima facie showing in support of its allegations. The burden then shifts to Respondent to show that it has rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”).
On the record before us, Complainant has presented a sufficient prima facie case, while Respondent has failed to respond to the allegations of the Complaint. From this failure, we may infer that Respondent lacks rights to or legitimate interests in the disputed domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004):
Respondent’s
failure to respond to the Complaint functions as an implicit admission that
[Respondent] lacks rights and legitimate interests in the disputed domain
name. It also allows the Panel to accept
all reasonable allegations set forth…as true.
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.
However, we will examine the available record to determine if there is any basis for concluding that Respondent has rights or interests cognizable under the Policy.
We begin by noting that the pertinent WHOIS information lists the registrant of the contested domain merely as “Travis Martin.” This suggests that Respondent is not commonly known by the <americancenturt.com> domain name. In the absence of evidence to the contrary, we must conclude that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003): “Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.” See also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name where there was no evidence in the record showing that that respondent was commonly known by the domain name).
We also observe that Complainant contends, and Respondent does not deny, that Respondent’s domain name resolves to a parked website featuring links that further resolve to websites of Complainant’s competitors. From the circumstances presented, we infer that Respondent generates click-through fees from such use. Such behavior does not qualify as a bona fide offering of goods or services or a legitimate non-commercial or fair use of the contested domain pursuant to Policy ¶¶ 4(c)(i) or (iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s diversionary use of a complainant’s marks to send Internet users to a website which displayed links to that complainant’s competitors, was not a bona fide offering of goods or services); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that a respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the business of a complainant 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)).
Complainant has thus satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent is using the contested domain name to attract Internet users to a website containing commercial links to Complainant’s competitors’ websites and that such use represents bad faith registration and use under Policy ¶ 4(b)(iii). We agree. Appropriating a misspelled version of Complainant’s AMERICAN CENTURY mark to divert Internet users as described in the Complaint disrupts Complainant’s business, which is evidence that Respondent has engaged in bad faith registration and use of the disputed domain pursuant to 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 links to the websites of a complainant’s commercial competitors represents bad faith registration and use of the domain 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 a disputed domain name to operate a commercial search engine with links to a complainant’s business competitors).
Moreover, the subject domain name, which evidently deliberately capitalizes on a common mistyping of Complainant’s mark, demonstrates bad faith registration and use of the domain pursuant to Policy ¶ 4(b)(iv) usually referred to as typo-squatting. See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003):
Respondent’s
registration and use of the disputed domain name demonstrates a practice
commonly referred to as ‘typosquatting.’
This practice diverts Internet users who misspell Complainant’s mark to
a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing
bad faith registration and use under Policy ¶ 4(b)(iv).
See also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003):
Typosquatting
… is the intentional misspelling of words with [the] intent to intercept and
siphon off traffic from its intended destination, by preying on Internauts who
make common typing errors. Typosquatting
is inherently parasitic and of itself evidence of bad faith.
For these reasons, the Panel 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 <americancenturt.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 23, 2009
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