Amplify Federal Credit Union v. Above.com Domain Privacy
Claim Number: FA1401001539263
Complainant is Amplify Federal Credit Union (“Complainant”), represented by Dwayne K. Goetzel, Texas, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <goamplfy.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 15, 2014; the National Arbitration Forum received payment on January 15, 2014.
On January 16, 2014, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <goamplfy.com> domain name is registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the name. 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 17, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2014 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@goamplfy.com. Also on January 17, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 February 10, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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
Complainant claims rights in two trademarks relevant to the present proceeding: AMPLIFY and GOAMPLIFY. Complainant’s AMPLIFY mark has been registered on the Principal Register of the U.S. Patent and Trademark Office since October 2, 2007. Complainant also claims common-law rights in both marks by virtue of their use in connection with Complainant’s credit union services since 2006. Complainant also uses the domain name <goamplify.com>, registered on August 9, 2006.
Respondent registered the disputed domain name <goamplfy.com> on October 25, 2007. Complainant contends that the disputed domain name is confusingly similar to Complainant’s marks and domain name.
Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name, and that the domain name was registered and is being used in bad faith. In support thereof, Complainant asserts that Respondent is “typo-squatting” by using a domain name that is identical to Complainant’s, with the exclusion of the letter “i.” Complainant states that Respondent is using the disputed domain name for a sponsored link page containing click-through advertising links, including links to services that compete directly with those offered by Complainant. Complainant notes that the privacy policy posted on Respondent’s website states that Respondent may use information collected through the site for any purpose. Complainant asserts further that Respondent has no affiliation or relationship with Complainant, is not known by the domain name, and is not making a legitimate noncommercial or fair use of the domain name. Complainant contends that bad faith may be inferred from the manner in which Respondent is using the domain name, and from the fact that Respondent registered the name after Complainant began using a similar domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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."
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.
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.”).
The disputed domain name is identical to Complainant’s registered trademark AMPLIFY, but for the addition of the word “go,” the omission of the letter “i," and the addition of the top-level domain suffix “.com”. None of these alterations significantly distinguish the domain name from Complainant’s mark. See, e.g., Vanguard Trademark Holdings USA LLC v. Whitfield, FA 1532353 (Nat. Arb. Forum Jan. 14, 2014) (finding <goalamo.ws> confusingly similar to ALAMO); Amplify Federal Credit Union v. Domain Park Ltd., FA 1235241 (Nat. Arb. Forum Jan. 2, 2009) (finding <goamplify.org> confusingly similar to AMPLIFY); Regions Asset Co. v. PrivacyProtect.org / Domain Admin, FA 1434152 (Nat. Arb. Forum May 7, 2012) (finding <regonsbank.com> confusingly similar to REGIONS BANK); Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (finding <pfzer.com> confusingly similar to PFIZER). Accordingly, the Panel considers the disputed domain name to be confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark (with the introduction of a typographical error) and is nearly identical to Complainant’s domain name. The only apparent use that Respondent has made of the disputed domain name is to profit by displaying advertising links to Internet users who inadvertently omit a letter from Complainant’s domain name. See, e.g., Regions Asset Co., supra (finding lack of rights or legitimate interests based upon similar facts). Respondent has not come forward with any evidence of rights or legitimate interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of a domain name identical to Complainant’s, but for a typographical error, and use of that name for a website containing pay-per-click links, including links to Complainant’s competitors, are indicative of bad faith under the Policy. See, e.g., Pfizer Inc. v. BargainName.com, supra. The Panel so finds.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <goamplfy.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 17, 2014
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