MetAmerica Mortgage Bankers v. Whois ID Theft Protection c/o Domain Admin
Claim Number: FA0611000852581
Complainant is MetAmerica Mortgage Bankers (“Complainant”), represented by George
J Anger, of Lightmaker Tunbridge Wells Ltd,
Buildings 3&4 Century Place,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <metamerica.com>, registered with Dotster.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On November 27, 2006, Dotster confirmed by e-mail to the National Arbitration Forum that the <metamerica.com> domain name is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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 December 4, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 26, 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@metamerica.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 <metamerica.com> domain name is confusingly similar to Complainant’s METAMERICA MORTGAGE BANKERS mark.
2. Respondent does not have any rights or legitimate interests in the <metamerica.com> domain name.
3. Respondent registered and used the <metamerica.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, MetAmerica Mortgage Bankers, is a financial
service provider that operates ten locations in the southeastern
Complainant has registered the METAMERICA MORTGAGE BANKERS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,001,146 issued September 27, 2005, filed February 20, 2004; Reg. No. 2,938,034 issued April 5, 2005, filed February 20, 2004).
Respondent’s <metamerica.com> domain name, which it registered on May 8, 2004, resolves to a pay-per-click website displaying links to various websites with content unrelated to Complainant, such as cell phone, ring tone downloads, discounted products and services, and maps of America.
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. 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 holds two trademark registrations for the
METAMERICA MORTGAGE BANKERS mark with the USPTO. As Complainant’s rights in the mark relate
back to the filing date of February 20, 2004, Planetary Soc’y v. Rosillo,
D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of
Complainant’s trademark rights date back to the application’s filing date), Complainant
has sufficiently established rights in the mark that predate Respondent’s
registration of the <metamerica.com> domain name on May 8,
2004. Miller
Products Co. v. Grozinger, FA 823231 (Nat. Arb. Forum Dec. 5, 2006)
(“Rights in a trademark can be shown in several ways, including by way of a
Respondent’s <metamerica.com> domain name
incorporates the predominant portion of Complainant’s METAMERICA MORTGAGE
BANKERS mark and merely omits the last two terms. In Asprey & Garrard Ltd v. Canlan
Computing, D2000-1262 (WIPO
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and
legitimate interests in the <metamerica.com> domain name. Complainant must first make a prima facie case
in support of its allegations, and then the burden shifts to Respondent to show
it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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 Policy ¶ 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’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <metamerica.com>
domain name. Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (finding that the respondents’ failure to respond can be
construed as an admission that they have no legitimate interest in the domain
names); see also 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). However,
the Panel will now examine the record to determine if Respondent has rights or
legitimate interests under Policy ¶ 4(c).
None of the evidence in the record points to Respondent
being commonly known by the <metamerica.com> domain name. Hence, the Panel finds that Respondent has
not established rights or legitimate interests in the <metamerica.com>
domain name pursuant to Policy ¶ 4(c)(ii). Coppertown
Drive-Thru Systems, LLC v. Snowden, FA
715089 (Nat. Arb. Forum July 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s registration and use of the confusingly similar
domain name to operate a pay-per-click website demonstrates bad faith pursuant
to Policy ¶ 4(b)(iv), for Respondent likely profits
from click-through fees for each Internet user it redirects to other websites
via links on Respondent’s website.
Respondent is taking advantage of the confusing similarity between the
<metamerica.com> domain name and Complainant’s METAMERICA MORTGAGE
BANKERS mark in order to profit from the goodwill associated with the mark,
which the Panel finds to be in bad faith under Policy ¶ 4(b)(iv). Allianz of Am. Corp. v.
Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith
registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting
Internet users searching for the complainant to its own website and likely
profiting from click-through fees); see also T-Mobile USA, Inc. v.
utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the
registration and use of a domain name confusingly similar to a complainant’s
mark to direct Internet traffic to a commercial “links page” in order to profit
from click-through fees or other revenue sources constitutes bad faith under
Policy ¶ 4(b)(iv)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <metamerica.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 12, 2007
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