Baylor University v. Stanley Pace
Claim Number: FA1101001370357
Complainant is Baylor University (“Complainant”), represented by Wendy C. Larson, Texas, USA. Respondent is Stanley Pace (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <baylor.org>, registered with Fabulous.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.
Dr. Reinhard Schanda as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 31, 2011; the National Arbitration Forum received payment on February 1, 2011.
On January 31, 2011, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <baylor.org> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 3, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 23, 2011 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@baylor.org. Also on February 3, 2011, 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.
A timely Response was received and determined to be complete on February 24, 2011.
Complainant’s Additional Submission was received on February 28, 2011 in compliance with Supplemental rule 7.
On March 3, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Dr. Reinhard Schanda as Panelist.
On March 7, 2011 the National Arbitration Forum Center received a second Additional Submission from Complainant, which is not in compliance with Supplemental rule 7.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends that Baylor University was originally chartered in 1845 by the Republic of Texas. It is the oldest continually operating institution of higher learning in Texas and is the largest Baptist university in the world. Complainant provides a wide curriculum of educational services through its eight colleges and schools at both the undergraduate and graduate levels, including arts, sciences, business, law, nursing, education, engineering, computer science, music, social work, and theology. Moreover, Complainant owns and uses the domain name <baylor.edu> for its primary website.
Complainant further contends that it is the owner of and it or its licensees has long used the marks BAYLOR, BAYLOR UNIVERSITY, BAYLOR HEALTH CARE SYSTEM, and other marks that include the term BAYLOR (referred to herein collectively as the “BAYLOR marks”) in connection with a wide range of goods and services. Complainant owns a number of trademark registrations for the BAYLOR marks in the United States and other countries, including the following (among others):
· BAYLOR, Reg. Nos. 1,465,910, 1,468,436, 1,858,559, and 1,936,714
· BAYLOR UNIVERSITY, Reg. Nos. 1,923,603 and 1,935,130
· BAYLOR UNIVERSITY MEDICAL CENTER, Reg. No. 1,670,564
· BAYLOR HEALTH CARE SYSTEM, Reg. No. 1,515,737
Complainant’s BAYLOR marks are extensively used in connection with medical-related services and education, primarily through Complainant’s licensees such as Baylor Health Care System (“BHCS”) and Baylor College of Medicine (“BCM”). Baylor licenses certain BAYLOR marks to these entities, and all use of the BAYLOR marks by them inures to the benefit of Complainant.
For example, Complainant’s licensee BHCS has been operating a system of hospitals and medical centers under the BAYLOR marks since at least 1959. BHCS has some of the most respected health care facilities in the nation; for example, for the 18th consecutive year, U.S. News & World Report has listed Baylor University Medical Center at Dallas in its “America’s Best Hospitals Guide 2010-2011.”
Complainant’s licensee BCM has been operating a medical school under the mark BAYLOR COLLEGE OF MEDICINE since at least 1969. This medical school is well known internationally for excellence in education, research, and patient care. It consistently ranks among the top medical schools in the U.S. For example, for 2011, the U.S. News & World Report ranks BCM in the top 25 for medical schools for research. BCM has affiliations with seven teaching hospitals, and currently trains more than 3,000 students, residents and post-doctoral fellows.
Complainant contends that the domain name <baylor.org> is identical to Complainant’s BAYLOR marks. The presence of a generic top level domain (“.org”) is irrelevant in a UDRP ¶ 4(a)(i) analysis. Indeed, it is very likely that Internet users would mistakenly direct navigate to <baylor.org> when intending to arrive at <baylor.edu>, Complainant’s main website.
Further Respondent has not used, nor made any demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. Complainant’s attorneys sent a cease-and-desist letter to Respondent on May 17, 2010 but Respondent has never responded. Rather, Respondent has continued using the domain name in connection with a monetized parking page with link titles that appear to reference Baylor and/or its licensees (e.g., “Baylor University Waco Texas,” “University,” and “Hospital Jobs”) yet divert traffic to third-party websites not affiliated with Complainant.
Further Respondent is not commonly known by the domain name at issue.
Respondent is not making a legitimate noncommercial or fair use of the domain name.
Respondent has listed the name for sale with an auction site. See a copy of DomainTools’ Whois record, attached as Exhibit G, stating, “Baylor.org is for sale. The owner of the domain you are researching has it listed for sale for $69.” An offer to sell a domain name for financial gain is evidence of a lack of legitimate interest in the name.
Finally Complainant contends that Respondent ignored Complainant’s demands and continued its infringing activity despite being given notice of Complainant’s trademark rights.
Respondent presumably is paid a fee or commission when Internet users visit the website <baylor.org>, click on the various links likely to be associated with Complainant and/or its licensees, and are diverted to third-party websites. Thus, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
According to Complainant Respondent has engaged in a pattern of bad-faith registration and use of others’ trademarks as domain names and was identified in NAF and WIPO UDRP cases as a respondent in at least 11 proceedings.
Respondent has listed the name for sale with an auction site. See a copy of DomainTools’ Whois record, attached as Exhibit G, stating, “Baylor.org is for sale. The owner of the domain you are researching has it listed for sale for $69.” An offer to sell a domain name is evidence of bad faith registration and use.
Not only is the domain name itself highly likely to cause confusion, but Respondent displays link titles on its website that are clear references to Complainant and/or its licensees.
Respondent’s bad faith is also evidenced by the fact that it owns no trademark or other intellectual property rights in the domain name, the domain name does not consist of the legal name of or a name commonly used to identify Respondent, Respondent has not used the domain name in connection with the bona fide offering of any goods or services, Respondent has made no bona fide noncommercial or fair use of Complainant’s marks in a site accessible under the domain name, and Respondent’s domain name is identical to the highly distinctive and famous mark BAYLOR.
B. Respondent
In its Response the Respondent stated the following:
“Accusation: Respondent has no rights or legitimate interest in the domain name.
Response: Baylor is a generic term – it means “horse trainer” in Irish, which is why it has been used in the domains of countless businesses and nonprofits, most of which have no association with Complainant. Exhibit A contains screenshots from several of the many English language websites that translate the term “Baylor” from Irish into English. Owning generic domain names has been shown to be a legitimate interest in and of itself, but in this case I am using the domain for more. If Complainant has read the history of my UDRP disputes, they know that I use surname domain names to offer email services (see the Riveron.com case, where it was concluded that such use is a legitimate business use, and I retained Riveron.com). Baylor.net is used for the same purpose (see Exhibit B). Baylor is the surname for nearly 50,000 people worldwide which makes it a great domain for this purpose, much better than Riveron.com, which was determined to be a good faith use of the domain. In addition to Case #1309793 (Riveron.com), multiple cases have shown email clients to be a legitimate business interest for domains (Case No. D2009-0115, Grasso.com).
Accusation: Respondent has listed the domain name for sale at Domain Tools.
Response: I did not do this and I have no idea why DomainTools would say this as I have not listed a single domain for sale with them, ever, and I do not want to sell this domain name as it is a great email address for nearly 50,000 people. The DomainTools search page looks identical and has the same $69 “Acquire this Domain” link for Baylor.EDU, and I would not accuse the Complainant of bad faith just because DomainTools advertises that every domain is for sale (Exhibit C).
Accusation: Prior panels have held in favor of Baylor in “virtually identical situations.” A list of domain names are then used as examples.
Response: I find it impossible to believe that a lawyer would not know the difference between domain names like BaylorMedicalCenter.com and BaylorCollegeMd.com, which actually describe a specific trademarked service that Complainant is offering, and the domain name “baylor.org,” which is a generic Irish term and a surname for tens of thousands of people.
Accusation: Respondent is using the domain name in bad faith.
Response: The domain is set to display content related to the generic term “Baylor,” meaning “horse trainer” as shown in my screenshot – nothing related to Complainant’s school. If they are able to find evidence to the contrary they must be using the search box to search for other content and deliberately skew the results. This can be done on any site with a search box, including Google. Exhibit D shows what the domain actually looks like.
Accusation: Respondent has engaged in a pattern of bad-faith registration.
Response: Complainant is referencing cases that I won (Case #1309793 (riveron.com), Case #1338748, etc), and winning a UDRP does not show bad faith, only that someone operates many websites. Also, many of the losing cases they referenced were cases of a different respondent (Case D2010-1178, Case D2010-1149, Case D2009-1738, etc).”
C. Additional Submissions
In its Additional Submission Complainant contends that Respondent does not and cannot dispute that the domain name is identical or confusingly similar to Complainant’s marks.
Respondent’s claim that he is using <baylor.org> for a legitimate purpose is unsupported by any facts or evidence. Respondent’s hypothetical scenarios of how the domain name might be used, such as for horse-training related issues, email addresses, or in connection with a surname are unavailing. Assuming for the sake of argument that any of those ventures would constitute a legitimate interest under the Policy, the simple fact is that Respondent is not using the domain name in any of these ways. His arguments about how domain names are used by others (e.g., Baylor.net) are similarly irrelevant. This proceeding concerns this Respondent and his actual use of this domain name.
Respondent claims that he uses the domain name for email addresses, but he provides no proof of this allegation. Respondent says that a prior panel (Riveron v. Stanley Pace, Case No. FA1309793 (NAF)) found such use of his to be legitimate in connection with a different domain name, but this is false. The Riveron decision was on different grounds and did not reach the issue of his email address claim.
And of course, a simple glance at <baylor.org> confirms that the name is being used for a pay-per-click parking page that appears to be related to Complainant and its licensees. There is no indication that the name is being used as Respondent says it is.
Respondent has manipulated the website in an attempt to deceive the panel, as the “Exhibit D” he submitted is not how the page at <baylor.org> truly appears. Rather, Respondent’s website displays link titles that appear to relate to Complainant or its Licensees. Respondent’s “Exhibit D” is a manipulation of the website. Specifically, if an Internet user types <baylor.org> into the browser, a pay-per-click page with link titles that seem to reference Complainant and its licensees will appear. For example, the page includes the following link titles: “Baylor University Waco Tx,” “University,” “Find Hospital,” and “Hospital Jobs.”
However, if you type in “horse trainer” to the search query window at <baylor.org>, a page much like the one Respondent submitted appears. Indeed, the title over the real <baylor.org> page says, “Ads” whereas the title over Respondent’s exhibit page states, “Ads for Horse Trainer,” which indicates that the page Respondent submitted is not the initial page at <baylor.org>. This is the case for anything that you type in the query field—the resulting page will have the title, “Ads for ….” For example, typing in “unicorns” into the search query field at <baylor.org> will result in a page full of ads relating to unicorns, still on the <baylor.org> page, with the title, “Ads for Unicorns.” This, of course, is much like the title over Respondent’s fake page at his “Exhibit D.” However, an Internet user does not see the “Ads for Horse Trainer” page when they arrive at <baylor.org>, as Respondent represents.
According to Complainant Respondent has been named as a respondent in 11 UDRP proceedings. Although he prevailed in one of them and received a split decision in another, he decisively lost all of the rest. His claim that “many of the losing cases… were cases of a different respondent” is false. These decisions name Stanley Pace of Texas, and often Stanley Pace of Flower Mound, Texas. It appears that Respondent is contorting the facts as some of the cases involved him and another respondent.
Moreover, the UDRP decisions cited in the Complaint likely only represent a small fraction of Respondent’s cybersquatting activities. Indeed, Respondent owns many more domain names that the affected trademark owners may be unaware of or have decided not to pursue. For example, Respondent owns the domain names Facebooktagger.com, Twigger.com, Friendst.com, and Myfoxnews.com, and such ownership and use likely violates the trademark rights of Facebook, Twitter, Friendster, and Fox News, respectively.
Finally, Complainant contends that the response is procedurally deficient. Perhaps tellingly, the response is unsigned and Respondent does not include the following statement, both required by Rule 5(b)(viii):
Respondent certifies that the information contained in this Response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.
For all of these reasons and the arguments submitted in the Complaint, Complainant requests that the domain name <baylor.org> be transferred from Respondent to Complainant.
The Panel finds that:
1. the Domain Name <baylor.org>, is confusingly similar to Complainant’s marks,
2. the Respondent has not established rights and legitimate interests in the Domain Name <baylor.org>and
3. the Respondent has registered and is using the Domain Name <baylor.org>, 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."
On March 7, 2011 the National Arbitration Forum Center received a Supplement to Additional Submission from Complainant. The Panel finds, that this Supplement has to be qualified as a second Additional Submission from Complainant. According to the Forum’s Supplemental Rule 7 a Party is only allowed to file one Additional Submission or Response to Additional Submission. Complainant’s Supplement to Additional Submission is therefore not in compliance with Supplemental rule 7. As a result the Panel decides not to consider Complainant’s Supplement to Additional Submission.
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 presents evidence of multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its BAYLOR mark (e.g., Reg. No. 1,465,910 issued November 17, 1987). Complainant argues that through its use of the mark, as well as its trademark registrations, that it has established rights in the BAYLOR mark for purposes of the instant proceedings. The Panel finds that Complainant has offered sufficient evidence of trademark rights in its BAYLOR mark to establish rights in such mark under 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 Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Further, Complainant argues that the <baylor.org> domain name is identical to its BAYLOR mark. Complainant contends that the presence of the generic top-level domain (“gTLD”) “.org” is irrelevant in a Policy ¶ 4(a)(i) analysis. The Panel agrees and finds that Respondent’s disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i), where the domain name contains Complainant’s mark in its entirety while adding the gTLD “.org.” See Microsoft Corp. v. Mehrotra, D2000-0053 (WIPO Apr. 10, 2000) (finding that the domain name <microsoft.org> is identical to the complainant’s mark); see also Sea World, Inc. v. JMXTRADE.com, FA 872052 (Nat. Arb. Forum Feb. 12, 2007) (“[Since] [t]he top-level gTLD is merely a functional element required of every domain name, the <shamu.org> domain name is identical to the SHAMU mark under a Policy ¶ 4(a)(i).”).
While Respondent contends that the <baylor.org> domain name is comprised of a common and generic term and as such cannot be found to be identical to Complainant’s mark, the Panel is of the view that such a determination is not necessary under Policy ¶ 4(a)(i) as this portion of the Policy considers only whether Complainant has rights in the mark and whether the disputed domain name is identical or confusingly similar to Complainant’s mark. See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 7, 2007) (finding that because the complainant had received a trademark registration for its VANCE mark, the respondent’s argument that the term was generic failed under Policy ¶ 4(a)(i)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (“Respondent’s argument that each individual word in the mark is unprotectable and therefore the overall mark is unprotectable is at odds with the anti-dissection principle of trademark law.”).
The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent does not assume the burden of proof, but may establish a right or legitimate interest in a disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy:
(a) He has made preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services prior to the dispute;
(b) He is commonly known by the domain name, even if he has not acquired any trademark rights; or
(c) He intends to make a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
The Panel determines that the Complainant has discharged the onus of proof for the second criterion: The Respondent has failed to demonstrate any legitimate right or interest.
According to the majority of Panel decisions this Panel also takes the position that while Complainant has the burden of proof on this issue, once the Complainant has made a prima facie showing, the burden of production shifts to the Respondent to show by providing concrete evidence that it has rights to or legitimate interests in the domain name at issue. See Document Technologies, Inc. v. Int’l Elec. Communications, Inc., D2000-0270 (WIPO June 6, 2000); see also Inter-Continental Hotel Corp. v. Soussi, D2000-0252 WIPO July 5, 2000); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the Complainant has asserted that the Respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the Respondent”); see also 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.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Complainant argues that Respondent is not commonly known by the disputed domain name. The Panel notes that the WHOIS information for the disputed domain name identifies “Stanley Pace” as the registrant of the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant further argues that Respondent’s use of the disputed domain name indicates that it does not have rights or legitimate interests in the domain name. Complainant contends that Respondent’s disputed domain name resolves to a monetized pay-per-click website that features various third-party links under headings such as “Baylor University Waco Texas,” “University,” and “Hospital Jobs,” but when the links are clicked they send Internet users to competing educational websites. Complainant alleges that Respondent receives click-through fees from the businesses advertised and linked-to on its website, and that such use does not establish rights and legitimate interests in the domain name. The Panel agrees and finds that Respondent’s use of the disputed domain name to display various third-party links to competing educational institutions, presumably for financial gain, is not 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). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent 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)).
Lastly, Complainant alleges that Respondent is also attempting to sell the disputed domain name at auction, as evidenced through the third-party DomainTools WHOIS search for the domain name at issue. Complainant argues that when it conducted a WHOIS search for the disputed domain name that the DomainTools website displayed a banner that states: “Baylor.org is for sale. The owner of the domain you are researching has it listed for sale for $69.” Complainant argues that offering a domain name for sale is further evidence that Respondent does not have rights or legitimate interests in the domain name. The Panel is of the view that Respondent’s offer to sell the disputed domain name to the general public is further evidence that it does not have rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii). See Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use); see also Skipton Bldg. Soc’y v. Colman, D2000-1217 (WIPO Dec. 1, 2000) (finding no rights in a domain name where the respondent offered the infringing domain name for sale and the evidence suggests that anyone approaching this domain name through the worldwide web would be "misleadingly" diverted to other sites).
Complainant has presented evidence to show that Respondent is attempting to sell the disputed domain name to the general public. The Panel finds that Respondent’s purported offer to sell the disputed domain name is evidence of bad faith registration and use under Policy ¶ 4(b)(i). The Panel also finds that Respondent primarily intended for such an offer upon its registering the domain name. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale).
Complainant offers evidence that Respondent has been the respondent in several past UDRP cases in which Respondent was ordered to transfer the disputed domain names to the respective complainants. See Neiman Marcus Grp., Inc. v. Pace, FA 820337 (Nat. Arb. Forum November 20, 2006); see also Kinecta Fed. Credit Union v. Pace, FA 1153943 (Nat. Arb. Forum May 2, 2008); see also 24 Hour Fitness USA, Inc. v. Pace, FA 1315664 (Nat. Arb. Forum May 10, 2010). The Panel finds that Complainant’s evidence establishes Respondent’s bad faith registration and use under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Complainant has presented evidence to show that Respondent is using the disputed domain name to display various third-party links to competing educational institutions. Complainant argues that such use is evidence of bad faith registration and use. The Panel finds that Respondent’s use of the disputed domain name to divert Internet users to competing businesses is evidence of bad faith registration and use 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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant further presents evidence to show that Respondent’s use of the disputed domain name to display third-party links to competing educational institutions results in Respondent’s commercial gain through its use of pay-per-click links. The Panel finds that Respondent’s use of the disputed domain name is further evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baylor.org> domain name be TRANSFERRED from Respondent to Complainant.
Dr. Reinhard Schanda, Panelist
Dated: March 8, 2011
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