Baylor University v. Agus Felani / AKMG
Claim Number: FA1509001636983
Complainant is Baylor University (“Complainant”), represented by Travis R. Wimberly, Texas, USA. Respondent is Agus Felani / AKMG (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <baylorcollegeofmedicine.info>, registered with Dynadot, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 9, 2015; the Forum received payment on September 9, 2015.
On September 13, 2015, Dynadot, LLC confirmed by e-mail to the Forum that the <baylorcollegeofmedicine.info> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 September 16, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 6, 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@baylorcollegeofmedicine.info. Also on September 16, 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 October, 9, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Baylor University, is a higher learning institution located in Texas. Complainant has licensed Baylor College of Medicine to use its registered trademarks under licensing agreements. Complainant is the owner of the BAYLOR COLLEGE OF MEDICINE mark (e.g., Reg. No. 3,119,420, registered July 25, 2006), as evidenced by its registration with the United States Patent and Trademark Office (“USPTO”). See Compl., at Attached Ex. B. The <baylorcollegeofmedicine.info> domain name is identical to the BAYLOR COLLEGE OF MEDICINE mark. The disputed domain name contains Complainant’s BAYLOR COLLEGE OF MEDICINE mark in full and attaches the generic top-level domain (“gTLD”) “.info” to the domain name.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent has failed to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name to display commercial advertisements and several “blog” posts about affiliate marketing and monetization of web traffic. See Compl., at Attached Ex. D. Additionally, Respondent is using the disputed domain name to display plagiarized content.
Respondent has registered and is using the <baylorcollegeofmedicine.info> domain name in bad faith. Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites by creating a likelihood of confusion with Complainant’s mark. Such use demonstrates that Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding. The <baylorcollegeofmedicine.info> domain name was registered January 15, 2015.
As the Respondent has failed to file a Response in this matter, the Panel shall make its determination based on the reasonable and undisputed allegations of the Complainant. As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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.”).
As the disputed domain name consists of the Complainant’s registered trademark but deletes spaces and adds the gTLD “.info,” it is clear and undisputed that the disputed domain name is confusingly similar to the Complainant’s registered trademark.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name lists “Agus Felani / AKMG” as the registrant of record. Lacking a response from Respondent which might prove otherwise, the Panel finds that such evidence is sufficient to establish Respondent’s lack of rights to the disputed domain name according to Policy ¶ 4(c)(ii).
Complainant argues that Respondent has failed to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. According to Complainant, Respondent uses the disputed domain name to display commercial advertisements and several “blog” posts about affiliate marketing and monetization of web traffic. See Compl., at Attached Ex. D. Additionally, Respondent is apparently using the disputed domain name to display plagiarized content. The panel have declines to find a bona fide offering of goods or services or a legitimate noncommercial or fair use where the Respondent uses an identical domain name to promote its own unrelated products or services. See Vanderbilt Univ. v. U Inc., FA 893000 (Nat. Arb. Forum Feb. 19, 2007) (holding that the respondent did not have rights or legitimate interests in a domain name where it was redirecting Internet users to its own website promoting the respondent’s books unrelated to the complainant).
Therefore, the Panel concludes that Respondent’s attempt to promote its own online product, which is allegedly plagiarized, is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Accordingly, the Respondent has no rights or legitimate interests in or to the disputed domain name.
Complainant claims that Respondent has registered and is using the <baylorcollegeofmedicine.info> domain name in bad faith. Complainant asserts that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites by creating a likelihood of confusion with Complainant’s mark, and that such use demonstrates that Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). Complainant contends that Respondent uses the disputed domain name in connection with a blog that features advertisements, which presumably results in commercial gain. Past panels have found that use of advertisements on an identical domain name results in a finding of bad faith under Policy ¶ 4(b)(iv). See ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where the respondent linked the domain name to another domain name, <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain).
As such, the Panel finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Last, Complainant alleges that the BAYLOR COLLEGE OF MEDICINE mark is highly distinctive and famous, and therefore actual knowledge may be imputed to Respondent. As there is no evidence in the record to indicate otherwise, the Panel finds that, given the totality of the circumstances, the Respondent must have had actual knowledge of Complainant’s trademark and rights therein.
As such, the Panel finds that the Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <baylorcollegeofmedicine.info> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: October 14, 2015
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