Arrowhead Central Credit Union d/b/a Arrowhead Credit Union v. Takashi Yamaguchi / bkt
Claim Number: FA1411001591652
Complainant is Arrowhead Central Credit Union d/b/a Arrowhead Credit Union (“Complainant”), represented by Bruce A. Pearson of Styskal, Wiese & Melchione, LLP, California, USA. Respondent is Takashi Yamaguchi / bkt (“Respondent”), Japan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arrowheadcu.net>, registered with ONLINENIC, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 21, 2014; the National Arbitration Forum received payment on November 21, 2014.
On November 24, 2014, ONLINENIC, INC. confirmed by e-mail to the National Arbitration Forum that the <arrowheadcu.net> domain name is registered with ONLINENIC, INC. and that Respondent is the current registrant of the name. ONLINENIC, INC. has verified that Respondent is bound by the ONLINENIC, INC. 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 December 10, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 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@arrowheadcu.net. Also on December 10, 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 January 5, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. Mccotter, Jr. (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 (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 uses ARROWHEAD to promote its financial services business. The mark is registered with the United States Patent and Trademark Office ("USPTO"). The <arrowheadcu.net> domain name adds a gTLD and the abbreviation “cu” to the mark (“cu” meaning “Credit Union”).
Respondent has no right or legitimate interest in using the <arrowheadcu.net> domain name. First, Respondent is not known by this domain name and Complainant has never licensed this Respondent to utilize ARROWHEAD in any fashion. Further, Respondent is using the domain name to promote third-party services, namely credit union and bank services that compete with Complainant.
Respondent has registered and is using the <arrowheadcu.net> domain name in bad faith. Respondent has a history of bad faith registration. See, e.g., Philip Morris USA v. Takashi Yamaguchi, FA 1527651 (Nat. Arb. Forum Dec. 4, 2013); Dr. ing h/c F. Porsche AG v. Takashi Yamaguchi, D2014–007 (WIPO Mar. 10, 2014). Respondent is also profiting from a likelihood Internet users will confuse Complainant as a source or origin of these conflicting and competitive offers.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Arrowhead Central Credit Union d/b/a Arrowhead Credit Union, uses ARROWHEAD to promote its financial services business. The mark is registered with the United States Patent and Trademark Office ("USPTO").
Respondent, Takashi Yamaguchi / bkt, registered the <arrowheadcu.net> domain name on October 3, 2012. Respondent uses the <arrowheadcu.net> domain name to promote third-party credit union and bank services that compete with Complainant.
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.”).
Complainant has rights in the ARROWHEAD mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Scripps Networks, LLC v. chen wenjie, FA 1523127 (Nat. Arb. Forum Nov. 12, 2013) (“The Panel finds that Complainant’s USPTO registration establishes Complainant’s rights in the mark under Policy ¶ 4(a)(i), even despite the fact that Respondent appears to reside out of the United States.”).
Respondent’s <arrowheadcu.net> domain name is confusingly similar to Complainant’s ARROWHEAD mark. The domain name merely adds a gTLD and the abbreviation “cu” to the mark (“cu” meaning “Credit Union”).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Respondent is not commonly known by the <arrowheadcu.net> domain name under Policy ¶ 4(c)(ii). Complainant has not licensed this Respondent to utilize the ARROWHEAD mark. The WHOIS record lists “Takashi Yamaguchi” as the registrant for this domain name. 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).
Respondent uses the <arrowheadcu.net> domain name to promote third-party credit union and bank services that compete with Complainant. The domain name resolves to a website where a series of loan and credit-related companies are promoted via hyperlinks. Respondent’s use of the domain name is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Respondent has a history of bad faith registration evidenced by adverse UDRP decisions. See, e.g., Philip Morris USA v. Takashi Yamaguchi, FA 1527651 (Nat. Arb. Forum Dec. 4, 2013); Dr. ing h/c F. Porsche AG v. Takashi Yamaguchi, D2014–007 (WIPO Mar. 10, 2014). Therefore, Respondent has engaged in bad faith registration and use of the <arrowheadcu.net> domain name under Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Respondent presumably is profiting from the links to competing credit union and bank services, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See 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).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <arrowheadcu.net> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 19, 2015
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