The Vanguard Group, Inc. v.
Claim Number: FA0612000864835
Complainant is The Vanguard Group, Inc. (“Complainant”), represented by Robyn
Y. Ettricks, of The Vanguard Group, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <vanguarc.com>, registered with Moniker Online Services, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 14, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 3, 2007 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@vanguarc.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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant is one of the
leading investment compaines in the
Complainant has used its
VANGUARD mark since at least 1974 in connection with its offering of a variety
of financial products and services.
Complainant holds a service
mark registration with the United States Patent and Trademark Office (“USPTO”)
for the VANGUARD mark (Reg. No. 1,784,435, issued July 27, 1993).
Complainant also holds
several international mark registrations for the VANGUARD mark, and it operates
a website at the <vanguard.com> domain name.
Respondent is not authorized to use Complainant’s mark, and
Respondent is not associated with Complainant in any way.
Respondent registered the <vanguarc.com>
domain name on
Respondent’s disputed domain name resolves to a website that displays hyperlinks to a variety of third-party websites that are unrelated to Complainant.
Respondent has also been the respondent in several other UDRP proceedings in which the disputed domain names in those cases were transferred from Respondent to the complainants in those proceedings.
Respondent’s <vanguarc.com> domain name is confusingly similar to Complainant’s VANGUARD mark.
Respondent does not have any rights to or legitimate interests in the <vanguarc.com> domain name.
Respondent registered and used the <vanguarc.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a 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 same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration with the USPTO sufficiently
establishes its rights in the VANGUARD mark.
See, for example, Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
Respondent’s <vanguarc.com>
domain name is confusingly similar to Complainant’s VANGUARD mark under Policy
¶ 4(a)(i) inasmuch as it merely contains a slightly misspelled
version of Complainant’s mark. The
disputed domain name replaces the last letter of Complainant’s mark with the
letter “c” which is located just below the letter “d” on a standard
keyboard. See Victoria’s Secret v.
Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by
misspelling words and adding letters to words, a respondent does not create a
distinct mark but renders the domain name confusingly similar to a
complainant’s marks); see also
Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and
legitimate interests in the <vanguarc.com>
domain name. Under the Policy, Complainant
must first make out a prima facie case in support of its allegations. The burden then shifts to Respondent to show that
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) (holding that once a complainant asserts that a
respondent has no rights or legitimate interests with respect to a domain, the
burden shifts to that respondent to provide “concrete evidence that it has
rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Because
Complainant’s Submission constitutes a prima
facie case under the Policy, the burden effectively shifts to
Respondent. Respondent’s failure to respond means that Respondent has not
presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).
Complainant also asserts that Respondent is not authorized
to use Complainant’s mark and that Respondent is not associated with
Complainant in any way. Respondent does
not deny these allegations. Further, Respondent’s WHOIS information does not
indicate that it is commonly known by the <vanguarc.com>
domain name, and there is no other evidence in the record to indicate that
Respondent is or has ever been known by the disputed domain name. In Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum
It is also alleged without contradiction that Respondent is using the disputed domain name to operate a website that displays hyperlinks to various third-party websites unrelated to Complainant, presumably for Respondent’s commercial benefit through the earning of click-through fees. Such use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that a respondent’s diversionary use of a complainant’s mark to attract Internet users to its own website, which contained hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that a respondent’s use of a disputed domain name to redirect Internet users to commercial websites, unrelated to a complainant, presumably with the purpose of earning a commission or pay-per-click referral fee, did not evidence rights or legitimate interests in that domain name).
We also note that Complainant’s lack of rights and
legitimate interests in the disputed domain name is evidenced by the typo-squatted nature of
the domain, as it takes advantage of a common typing error by replacing the “d”
of Complainant’s mark with a “c.” See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that a respondent lacked rights and
legitimate interests in a disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum
The Panel thus finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant alleges that Respondent acted in bad faith by
registering the disputed
domain name. Based on the uncontested
evidence presented by Complainant, we may infer that Respondent receives
click-through fees for traffic to the links displayed on the website that
resolves from the disputed domain name.
Such commercial benefit constitutes bad faith registration and use under
Policy ¶ 4(b)(iv).
Additionally, we conclude that Respondent’s disputed domain name creates
a likelihood of confusion as to Complainant’s possible affiliation with the <vanguarc.com> domain name and
corresponding website, which is further evidence of bad faith registration and
use. See State Fair of
The Panel additionally
finds bad faith registration and use as the disputed domain name contains a
typosquatted version of Complainant’s mark, which is in itself evidence of bad
faith registration and use under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
Moreover, we see evidence of bad faith registration and use in
Respondent’s pattern of behavior. As has
been alleged by Complainant, Respondent has been found responsible for
typo-squatting in numerous UDRP proceedings.
See, for example, WHYY Inc.
v.
Finally, it appears that Respondent registered the contested
domain name with either actual or constructive
knowledge of Complainant’s rights in the VANGUARD mark by virtue of Complainant’s prior registration of that
mark with the pertinent national authorities worldwide. Registration and use of a confusingly similar
domain name despite such actual or constructive knowledge evidences bad faith
registration and use of the domain name pursuant to Policy ¶ 4(a)(iii). See Digi
Int’l v. DDI Sys.,
FA 124506 (Nat. Arb. Forum
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <vanguarc.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated:
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