American Financial Resources, Inc. v. Javier Rivera
Claim Number: FA0612000877776
Complainant is American Financial Resources, Inc. (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <american-financial-resources.com>, registered with Go Daddy Software, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 8, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 29, 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@american-financial-resources.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 <american-financial-resources.com> domain name is confusingly similar to Complainant’s AMERICAN FINANCIAL RESOURCES, INC. mark.
2. Respondent does not have any rights or legitimate interests in the <american-financial-resources.com> domain name.
3. Respondent registered and used the <american-financial-resources.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Financial
Resources, Inc., offers mortgage banking and brokerage services under the
AMERICAN FINANCIAL RESOURCES, INC. mark.
Complainant has continuously used the mark since 1997, when it
incorporated its business in the state of
Respondent’s <american-financial-resources.com>
domain name, which it registered on
Upon Complainant’s information and belief, Respondent registered the disputed domain name “for the purpose of attempting to extort a financial settlement for a false claim” from Complainant that Respondent had been unsuccessful in pursuing.
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.
Although Complainant does not own a trademark registration for the AMERICAN FINANCIAL RESOURCES, INC. mark, the Policy does not require registration of a mark to establish rights in that mark under Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the complainant need not own a valid trademark registration for the ZEE CINEMA mark in order to demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
The uncontradicted record reflects that through the
continuous use of Complainant’s AMERICAN FINANCIAL RESOURCES, INC. mark for ten
years the mark has acquired secondary meaning in connection with Complainant’s
mortgage services. As a result, the
Panel finds that Complainant has established common law rights in the mark
pursuant to Policy ¶ 4(a)(i). See Stellar Call Ctrs. Pty Ltd. v. Bahr, FA 595972 (Nat. Arb. Forum Dec. 19, 2005)
(finding that the complainant established common law rights in the STELLAR CALL
CENTRES mark because the complainant demonstrated that its mark had acquired
secondary meaning); see also Quality Custom Cabinetry, Inc. v. Cabinet Wholesalers, Inc., FA 115349 (Nat. Arb. Forum Sept. 7, 2002) (finding
that the complainant established common law rights in the mark through
continuous use of the mark since 1995 for the purpose of Policy ¶ 4(a)(i)).
As the <american-financial-resources.com>
domain name incorporates the predominant portion of the AMERICAN FINANCIAL
RESOURCES mark and merely omits the term “inc.” and adds hyphens between the
remaining terms, Respondent has not done enough to adequately differentiate the
disputed domain name from the mark.
Accordingly, the Panel finds the disputed domain name to be confusingly
similar to the mark pursuant to Policy ¶ 4(a)(i). See Sports Auth. Mich. Inc. v. Batu 5,
FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to
Complainant's mark does not create a distinct characteristic capable of
overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”); see also
Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name
<asprey.com> is confusingly similar to the complainant’s ASPREY &
GARRARD and MISS ASPREY marks).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and
legitimate interests in the <american-financial-resources.com>
domain name. Complainant must first make
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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO
Nov. 28, 2000) (the mere assertion by the complainant that the respondent has
no right or legitimate interest is sufficient to shift the burden of proof to
the respondent to demonstrate that such a right or legitimate interest does
exist); see also 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 <american-financial-resources.com>
domain name. See Branco do Brasil
S.A. v. Sync Tech., D2000-0727 (WIPO
Respondent has registered the domain name under the name “Javier Rivera,” and there is nothing in the record to suggest that Respondent is commonly known by the <american-financial-resources.com> domain name. Thus, Respondent has not established rights or legitimate interests in the <american-financial-resources.com> domain name pursuant to Policy ¶ 4(c)(ii). The Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names); see also America West Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Respondent is using the contested domain name to criticize Complainant’s mortgage brokerage services and convince Internet users not to use Complainant’s services. In Baker & Daniels v. DefaultData.com, FA 104579 (Nat. Arb. Forum Mar. 27, 2002), the panel found that because the respondent’s <bakeranddaniels.com> domain name merely incorporated the complainant’s trademark, without more, the respondent’s use of the disputed domain name to criticize the complainant did not represent 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). In this case, the Panel concludes that Respondent’s use of a domain name confusingly similar to Complainant’s AMERICAN FINANCIAL RESOURCES, INC. mark to criticize Complainant cannot be considered 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 Weekley Homes, L.P. v. Fix My House Or Else?, FA 96609 (Nat. Arb. Forum Apr. 18, 2001) (finding that establishment of a website containing criticism is not a legitimate use of the <davidweekleyhome.com> domain name because the disputed domain name is confusingly similar to the complainant's DAVID WEEKLEY HOMES mark).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s use of the <american-financial-resources.com>
domain name to criticize Complainant’s mortgage brokerage services and warn Internet users about using
Complainant’s services indicates that Respondent has registered the disputed
domain name in bad faith for the primary purpose of disrupting Complainant’s
business according to Policy ¶ 4(b)(iii).
See TM Acquisition Corp. v. S.E.A. Domains, FA 156800 (Nat. Arb. Forum June 12, 2003) (finding the
respondent's use of the complainant's mark to redirect Internet users to a
website dedicated to criticizing the complainant was evidence that the
respondent’s domain names were registered and used in bad faith).
The Panel concludes 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 <american-financial-resources.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 8, 2007
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