Seibu Alaska, Inc., d/b/a Alyeska Resort and Prince Hotel and Anchorage Golf Course v. Jared Armstrong
Claim Number: FA0607000746549
Complainants are Seibu Alaska, Inc., d/b/a Alyeska Resort and Prince Hotel and Anchorage Golf Course (collectively “Complainant”), represented by Larry Daniels, of Alyeska Resort, P.O. Box 249, Girdwood, AK 99587. Respondent is Jared Armstrong (“Respondent”), P.O. Box 233236, Anchorage, AK 99523-3236.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <anchoragegolfcourse.com>, registered with Register.com, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 7, 2006; the National Arbitration Forum received a hard copy of the Complaint on July 11, 2006.
On July 10, 2006, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <anchoragegolfcourse.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On July 18, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 7, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@anchoragegolfcourse.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 11, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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." 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 makes the following assertions:
1. Respondent’s <anchoragegolfcourse.com> domain name is identical to Complainant’s ANCHORAGE GOLF COURSE mark.
2. Respondent does not have any rights or legitimate interests in the <anchoragegolfcourse.com> domain name.
3. Respondent registered and used the <anchoragegolfcourse.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Since December 1993, Complainant has been operating a golf course under the ANCHORAGE GOLF COURSE mark. Complainant’s operating lease with the Municipality of Anchorage specifically states that Complainant’s business will be operating as “Anchorage Golf Course.” Complainant has consistently used the ANCHORAGE GOLF COURSE in the promotion of its golf course on its website, located at the <alyeskaresort.com> domain name, as well as in correspondence, as evidenced by Complainant’s letterhead.
Respondent, Jared Armstrong, registered the <anchoragegolfcourse.com> domain name on May 7, 2003. Respondent was a former employee of Complainant, serving as a data processor for Complainant from June 29, 1999, until the termination of his employment on November 28, 2005. During Respondent’s employment with Complainant, Respondent was directed to register the disputed domain name on behalf of Complainant. However, Respondent registered the domain name on his own behalf. Respondent’s <anchoragegolfcourse.com> domain name resolves to a website for the American Civil Liberties Union.
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."
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 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 has provided a copy of its operating lease with the Municipality of Anchorage, as well as evidence of Complainant’s use of the mark in connection with the website for its resort, indicating that Complainant’s ANCHORAGE GOLF COURSE mark is recognized as being associated with Complainant. Therefore, the Panel finds that Complainant has sufficiently established common law rights in its ANCHORAGE GOLF COURSE mark, pursuant to Policy ¶ 4(a)(i). See Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (finding that the complainant had provided evidence that it had valuable goodwill in the <minorleaguebaseball.com> domain name, establishing common law rights in the MINOR LEAGUE BASEBALL mark).
The Panel finds that Respondent’s <anchoragegolfcourse.com> domain name is identical to Complainant’s ANCHORAGE GOLF COURSE under Policy ¶ 4(a)(i). The disputed domain name consists of Complainant’s mark, with the omission of spaces and the addition of the generic top-level domain (“gTLD”) “.com.” In Valeant Pharms. Int’l v. Carpela, D2005-0786 (WIPO Sept. 2, 2005), the panel concluded that the <cesamet.com> domain name was identical to the complainant’s CESAMET mark because the addition of the gTLD “.com” did not sufficiently distinguish the disputed domain name from the mark. Furthermore, in Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001), the panel found the <hannoverre.com> domain name to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names.” Therefore, the Panel in the instant case concludes that the <anchoragegolfcourse.com> domain name is identical to Complainant’s ANCHORAGE GOLF COURSE pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant initially must establish that Respondent does not have rights or legitimate interests with respect to the disputed domain name. However, once Complainant sufficiently demonstrates a prima facie case, the burden then shifts to Respondent to demonstrate that it has rights or legitimate interests with respect to the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel finds that Complainant has established a prima facie case and will examine the evidence on record to determine whether Respondent has any rights or legitimate interests with respect to the disputed domain names pursuant to Policy ¶ 4(c).
Respondent’s <anchoragegolfcourse.com> domain name resolves to a website for the American Civil Liberties Union. Consequently, the Panel finds that Respondent is using the disputed domain name to divert Internet users to its website, which is unrelated to Complainant’s golf course operation. Therefore, the Panel concludes that Respondent has not engaged in a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's registration and use of the <gayaol.com> domain name with the intent to divert Internet users to Respondent's website suggests that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy Paragraph 4(a)(ii).”).
Moreover, the Panel finds that Respondent registered the disputed domain name on his own behalf during his former employment with Complainant. Thus, Respondent’s registration of the <anchoragegolfcourse.com> domain name as a former employee serves as further evidence that Respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii). See Nasaco Elecs. Pte Ltd. v. A&O Computer AG, D2000-0374 (WIPO July 14, 2000) (finding that the respondent has no rights or legitimate interests in the domain name where the respondent’s former employee registered the domain name and transferred it to the respondent, who has since made no use of the domain name); see also Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2000) (finding that a former employee does not acquire rights or legitimate interests in a domain name identical to the former employer's trademark).
The evidence on record also fails to indicate that Respondent is commonly known by the <anchoragegolfcourse.com> domain name pursuant to Policy ¶ 4(c)(ii). Complainant avers that Respondent was never authorized to register the disputed domain name on his own behalf. Moreover, the WHOIS information does not suggest that Respondent is known by the disputed domain name. The Panel finds, therefore, that the evidence on record does not demonstrate that Respondent is commonly known by the disputed domain name in accord with Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) “to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent
registered the <anchoragegolfcourse.com> domain name while
employed by Complainant as a data processor, and was responsible for the
registration of the disputed domain name on behalf of Complainant. In light of Respondent’s registration of the
disputed domain name while employed by Complainant, the Panel finds that
Respondent registered and used the <anchoragegolfcourse.com>
domain name with the intent to disrupt Complainant’s business. Therefore, the Panel concludes that
Respondent’s conduct serves as evidence of bad faith registration and use of
the disputed domain name pursuant to Policy ¶ 4(a)(iii). See William Hill Org. Ltd. v.
Fulfillment Mgmt. Servs. Ltd., D2000-0826 (WIPO Sept. 17, 2000) (finding
bad faith registration and use where “[R]espondent’s employee must have had the
Complainant’s trade marks in mind when choosing the disputed domain name and
that the respondent‘s interest was to deprive the complainant of the
opportunity to reflect its mark in that name until the registration expires”); see also 163972 Canada, Inc.
v. Ursino, AF-0211 (e-Resolution July 3, 2000) (finding that because the
respondent was hired by the complainant to help design and register the
complainant’s websites, the respondent had intimate knowledge of the
complainant’s business and use of its TEENFLO mark. Therefore, the respondent’s
registration of the <teenflo.com> domain name was in bad faith).
Furthermore, the Panel
finds that Respondent’s use of the disputed domain name to display a website
for the American Civil Liberties Union demonstrates that Respondent registered
and used the <anchoragegolfcourse.com> domain name with the
intent to divert Internet users seeking Complainant’s website to a website of
Respondent. The Panel concludes,
therefore, that Respondent’s diversionary conduct represents bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb.
Forum July 21, 2006) (finding that the respondent took advantage of the
confusing similarity between the <theotheraol.com> and
<theotheraol.net> domain names and the complainant’s AOL mark, which
indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see
also Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir.
2002) ("While an intent to confuse consumers is not required for a finding
of trademark infringement, intent to deceive is strong evidence of a likelihood
of confusion.").
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <anchoragegolfcourse.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 23, 2006
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