United Services Automobile Association v. John Walker
Claim Number: FA0609000796309
Complainant is United Services Automobile Association (“Complainant”), represented by Carol
L.B. Matthews, of Oblon, Spivak, McClelland, Maier &
Neustadt, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <usaa-z.com>, registered with Enom, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On September 18, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 9, 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@usaa-z.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <usaa-z.com> domain name is confusingly similar to Complainant’s USAA mark.
2. Respondent does not have any rights or legitimate interests in the <usaa-z.com> domain name.
3. Respondent registered and used the <usaa-z.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, United Services Automobile Association,
provides financial and insurance services under the USAA mark, including
automobile, property, life and health insurance services. Since 1927, Complainant has continuously used
the USAA mark in connection with these services. More than five million customers utilize
Complainant’s services, predominantly members of the
Complainant has registered the USAA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 806,520 issued March 29, 1966; Reg. No. 1,712,134 issued September 1, 1992; Reg. No. 2,341,954 issued April 11, 2000; Reg. No. 927,536 issued January 18, 1972). Complainant has also registered numerous variations of the USAA mark with the USPTO, including USAA ASSOCIATIONS (Reg. No. 1,676,752), USAA BILLPAY (Reg. No. 1,951,916), USAA SELECT (Reg. No. 2,356,153) and USAA NEXT (Reg. No. 2,811,581).
Respondent registered the <usaa-z.com> domain
name on
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.
For purposes of Policy ¶ 4(a)(i),
Complainant has established rights in the USAA mark through registration of the
mark with the USPTO. See
Thermo Electron Corp et al. v. Xu, FA 713851 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and legitimate interests in the <usaa-z.com> domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights to or legitimate interests in the
<usaa-z.com> domain name. See
Geocities v. Geocities.com,
D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or
legitimate interests in the domain name because the respondent never submitted
a response or provided the panel with evidence to suggest otherwise); see
also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”). However, the Panel
will now examine the record to determine if Respondent has rights or legitimate
interests under Policy ¶ 4(c).
Respondent has registered the disputed domain name under the
name “John Walker,” and there is no other
evidence in the record suggesting that Respondent is commonly known by the <usaa-z.com>
domain name. As a result, Respondent has
not established rights or legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(c)(ii). 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); see also Coppertown Drive-Thru Systems, LLC v.
Snowden, FA 715089 (Nat. Arb.
Forum Jul. 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name).
Moreover, Respondent is using the <usaa-z.com> domain name, which includes Complainant’s USAA mark, to maintain commercial website displaying links to financial and insurance providers that compete with Complainant. In Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003), the panel found that the respondent’s use of a domain name to divert Internet users to a website selling goods and services similar to the services offered by the complainant was not 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). Because Respondent is also diverting Internet users seeking Complainant’s financial and insurance services to its own website offering similar services for commercial gain, Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <usaa-z.com> domain name pursuant to Policy ¶ 4(c)(iii). See Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum Jul. 29, 2005) (holding that the respondent’s use of disputed domain names to market competing limousine services was not a bona fide offering of goods or services under Policy ¶ 4(c)(i), as the respondent was appropriating the complainant’s CAREY mark in order to profit from the mark).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <usaa-z.com>
domain name resolves to a commercial website featuring links to Complainant’s competitors. In Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003), the panel found that the respondent had
registered and used the <euro-disney.com> domain name in bad faith
pursuant to Policy ¶ 4(b)(iii) because it resolved to a website promoting a
competing theme park. Because Respondent
is also redirecting Internet users interested in Complainant to competing
websites and disrupting Complainant’s business, Respondent has registered and
is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368
(
Furthermore, by operating a commercial web page at the
disputed domain name that features links to various financial and insurance
service providers, Respondent is attempting to attract, for commercial gain,
Internet users seeking Complainant’s products and services under the USAA mark
to competing websites. In BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb.
Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <usaa-z.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: October 30, 2006
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