Avocent Huntsville Corp. v. Syeda Quadri
Claim Number: FA1501001602435
Complainant is Avocent Huntsville Corp. (“Complainant”), Alabama, United States. Respondent is Syeda Quadri (“Respondent”), North Carolina, United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <avocenttech.com> and <avocentechnology.com> ('the Domain Names') , registered with GODADDY.COM, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 29, 2015; the Forum received payment on January 29, 2015.
On January 29, 2015, GODADDY.COM, LLC confirmed by e-mail to the Forum that the <avocenttech.com> and <avocentechnology.com> domain names are registered with GODADDY.COM, LLC and that Respondent is the current registrant of the names. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 19, 2015 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@avocenttech.com, postmaster@avocentechnology.com. Also on January 30, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 25, 2015 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
The Complainant's contentions can be summarised as follows:
The Complainant is the owner of various registered trade marks for AVOCENT in the USA and elsewhere for computer related goods and services. The mark has been in continuous use since 2000 when trade marks were initially filed.
The Domain Names are identical and/or confusingly similar to the Complainant's AVOCENT trade mark containing the mark or a one letter typo thereof and simply adding the generic terms 'tech' and 'technology'. The mere addition of these generic terms does not negate the said confusing similarity and is particularly confusing because these terms describe the Complainant's business and services.
Respondent has not been commonly known by the Domain Names. Complainant has not authorised the use of its mark and the Respondent is not connected with the Complainant in any way. AVOCENT has no meaning apart from the Complainant and its trade marks.
The Complainant has failed to make active use of avocenttech.com which resolves to a page that reads 'Ooops!! The page you tried to access does not exist on this server. This page may not exist due to the following reasons...'Passive holding of a web site does not qualify as a bona fide offering of goods or services, nor a legitimate non-commercial or fair use.
The Respondent is using avocentechnology.com to redirect Internet users to a web site featuring generic links to third party web sites from which presumably Respondent receives pay per click revenues. As such the Respondent is not using this Domain Name to provide a bona fide offering of goods or services or a legitimate non-commercial or fair use.
Respondent registered the Domain Names in 2014 long after the Complainant first filed for its registered trade mark in 2000 and the Respondent lacks any rights or legitimate interests in the Domain Names.
At the time of registration of the Domain Names the Respondent knew or should have known of the Complainant's AVOCENT MARK.
There is no conceivable legitimate use for the domain name avocenttech.com because it is confusingly similar to the Complainant's AVOCENT mark.
By registering a one letter visually similar typo of the Complainant’s mark and adding the generic term technology the Respondent is clearly using the Domain Name to confuse unsuspecting Internet users as to the source of its web site. The Respondent is trying to increase traffic to its web site for its own commercial gain as demonstrated by the pay per click links. This is bad faith under the policy 4 (b) (IV).
In response to a demand letter the Respondent said they would change its name, but never responded in response to a request for transfer of the Domain Names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is owner of registered trade marks in the USA for AVOCENT or including the AVOCENT mark, the first in time of which was filed in 2000 and has similar marks in other countries, such as Canada.
The Domain Names were registered in 2014. Avocenttech.com points to a holding page and no other use has been made of it. Avocentechnology.com has been used for a site with pay per click links to third party business unconnected with the Complainant including IT related services.
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.”).
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.”).
Identical or Confusingly Similar
The avocenttech.com domain name consists of the Complainant's AVOCENT mark and the generic term 'tech' and the gTLD .com. The Complainant operates in the field of technology for which 'tech' is a common abbreviation. The avocentechnology.com domain name consists of AVOCEN and the generic term 'technology' (describing the same field in which the Complainant operates) and the gTLD .com. Since 't' is the first letter of the word technology, the word string is a misspelling of Avocent Technology, the Complainant's mark plus the generic word 'technology'.
See Warner Bros Entm't Inc. v Sadler FA 250236 (Nat. Arb. Forum May 19, 2004) (finding that addition of generic terms to Complainant's mark failed to alleviate the confusing similarity between the mark and the domain names).
See The Big Green Egg Inc. v Texas International Property Associates- NA NA, FA 1228170 (NAF Dec 1, 2008) (where complainant owned the BIG GREEN EGG trade mark and Respondent deleted a 'g' between 'big' and 'green' in registering the domain name 'bigreenegg.com' and the Panel found that the disputed domain name was confusingly similar to the Complainant's trade mark.)
The gTLD .net does not serve to distinguish the Domain Names from the AVOCENT mark, which is the distinctive component of the Domain Names. See Red Hat Inc v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Respondent has not responded and given any reasons for its registration and use of the Domain Names. Respondent does not appear to be commonly known by the Domain Names. Complainant has not authorised the use of its mark and the Respondent does not appear to be connected with the Complainant in any way. AVOCENT does not appear to have any meaning apart from the Complainant and its trade marks.
Avocenttech.com is pointed to a holding page. See Bloomberg LP v SC Media Servs. & Info, SRL, FA 296583 (Nat. Arb. Forum Sept 2, 2004); see also George Weston Bakeries Inc. v McBroom, FA 933276 (Nat. Arb. Forum April 25, 2007 (both finding that the Respondent had no rights or legitimate interests in a domain name under either Policy 4 (c) (i) or Policy 4 (c) (iii) where it failed to make any active use of the domain name.)
Avocentechnology.com has been used to link to a pay-per-click website to other third party commercial web sites including IT services. The Panel notes Disney Enters. Inc. v Dot Stop FA 145227 (Nat Arb. Forum Mar 17 2003) (where the Panel concluded that the respondent's diversionary use of the complainant's mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites was neither a bona fide offering of goods and services nor a legitimate non-commercial or fair use of the disputed domain names.)
The Panel thus concludes that there is no rights or legitimate interests in the Domain Names under para 4 (c) (i) or (iii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <avocenttech.com> and <avocentechnology.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 10, 2015
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