Claim Number: FA1003001316358
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <baylorcme.com> and <fansofbaylor.com>, registered with Above.com Pty Ltd.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 30, 2010.
On March 30, 2010, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <baylorcme.com> and <fansofbaylor.com> domain names are registered with Above.com Pty Ltd. and that Respondent is the current registrant of the names. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 April 1, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 21, 2010 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@baylorcme.com and postmaster@fansofbaylor.com. Also on April 1, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <baylorcme.com> and <fansofbaylor.com> domain names are confusingly similar to Complainant’s BAYLOR mark.
2. Respondent does not have any rights or legitimate interests in the <baylorcme.com> and <fansofbaylor.com> domain names.
3. Respondent registered and used the <baylorcme.com> and <fansofbaylor.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Respondent, Transure Enterprise Ltd c/o Host Master, registered the disputed domain names on, or after March 26, 2009. The disputed domain names do not resolve to active websites. Respondent has offered to sell the <baylorcme.com> domain name to Complainant for $500.
Complainant
offers evidence Respondent has a history of registering domain names infringing
upon Complainants’ trademark rights and has been ordered by prior UDRP panels
to transfer the disputed domain names to the Complainant. See Baylor Univ. v. Transure. Enter. Ltd, FA 1220900 (Nat.
Arb. Forum Aug. 22, 2008); see also
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.
Complainant has registered the BAYLOR mark (e.g., Reg. No. 1,465,910 issued Novemer
17, 1987) with the USPTO. The Panel
finds this registration establishes Complainant’s rights in the mark pursuant
to Policy ¶ 4(a)(i).
See Miller Brewing
Respondent’s <baylorcme.com> and <fansofbaylor.com> domain names each incorporate Complainant’s BAYLOR mark in its entirety with the addition of the descriptive acronym “cme,” or the generic phrase “fans of” and the affixation of the generic top-level domain “.com.” The Panel finds these alterations do not negate a finding of confusing similarity between Complainant’s BAYLOR mark and Respondent’s <baylorcme.com> and <fansofbaylor.com> domain names under Policy ¶ 4(a)(i). Therefore, the Panel concludes Respondent’s <baylorcme.com> and <fansofbaylor.com> domain names are confusingly similar to Complainant’s BAYLOR mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with generic terms that have an obvious relationship to the complainant’s business); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Nat. Arb. Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant must make a prima facie case that Respondent lacks rights and legitimate interests in the <baylorcme.com> and <fansofbaylor.com> domain names before the burden shifts to Respondent to establish its rights or legitimate interests in the disputed domain names. The Panel finds Complainant has sufficiently made its prima facie case under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). In these proceedings, Respondent has failed to submit a response. As a result, the Panel may presume Respondent lacks rights and legitimate interests in the disputed domain names. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. 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, the Panel will examine the record to determine whether Respondent has any rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
Furthermore, Complainant contends Respondent is not commonly known by the <baylorcme.com> and <fansofbaylor.com> domain names. The WHOIS information reflects the registrant of the disputed domain names is “Transure Enterprise Ltd a/k/a Host Master.” This information suggests Respondent is not commonly known by the disputed domain names. There is no evidence in the record to suggest otherwise or any basis to support a finding Respondent is commonly known by the disputed domain names. Therefore, the Panel finds Respondent is not commonly known by either the <baylorcme.com> and <fansofbaylor.com> domain names under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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).
Respondent is not making an active use of the <baylorcme.com> and <fansofbaylor.com> domain names. The Panel finds Respondent’s failure to actively use the disputed domain names is further evidence Respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Furthermore, Respondent has offered to sell the <baylorcme.com> domain name to Complainant for $500, an amount presumably more than Respondent’s out-of-pocket registration costs. The Panel finds Respondent’s attempt to sell the <baylorcme.com> domain name is further evidence Respondent lacks rights and legitimate interests in the <baylorcme.com> domain name under Policy ¶ 4(a)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has offered to sell the <baylorcme.com> domain name to Complainant for $500. This amount is presumably in excess of Respondent’s out-of-pocket registration costs. The Panel finds Respondent’s registration and use of the <baylorcme.com> domain name for the purpose of selling it to Complainant for more than Respondent’s out-of-pocket costs constitutes bad faith registration and use under Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name); see also Little Six, Inc. v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding the respondent's offer to sell the domain name at issue to the complainant was evidence of bad faith).
Complainant
offers evidence Respondent has a history of registering domain names infringing
upon Complainants’ trademark rights and has been ordered by prior UDRP panels
to transfer the relevant disputed domain names to Complainant. See Baylor Univ. v. Transure. Enter. Ltd, FA 1220900 (Nat.
Arb. Forum Aug. 22, 2008); see also
Complainant contends Respondent has failed to make active use of the <baylorcme.com> and <fansofbaylor.com> domain names, and this failure is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). The Panel agrees, and finds Respondent’s failure to make active use of the <baylorcme.com> and <fansofbaylor.com> domain names is evidence of Respondent’s registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
The Panel finds 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 <baylorcme.com> and <fansofbaylor.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: April 30, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum