American Psychological Association v. Keyword Marketing, Inc.
Claim Number: FA0702000912458
Complainant is American Psychological Association (“Complainant”), represented by Johnathan
Hudis, of Oblon, Spivak, McClelland, Maier &
Neustadt, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <myapa.org>, registered with Domaindoorman, LLC.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 7, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 8, 2007.
On February 9, 2007, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <myapa.org> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, LLC 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 February 13, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 5, 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@myapa.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), 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 <myapa.org> domain name is confusingly similar to Complainant’s APA mark.
2. Respondent does not have any rights or legitimate interests in the <myapa.org> domain name.
3. Respondent registered and used the <myapa.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American
Psychological Association, is a professional organization that promotes psychological health, education, and
human welfare through professional standards and educational programs. In connection with its psychology-related products and services, Complainant has registered the
APA mark with the
Respondent, Keyword
Marketing, Inc., registered the <myapa.org> domain name on
November 1, 2005. The disputed domain
name resolves to a website containing links to third-party products and
services, many of which are psychology-related and include the abbreviation “APA.”
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 established rights in the APA mark pursuant
to Policy ¶ 4(a)(i) through its registration with the
The <myapa.org> domain name is confusingly similar to Complainant’s APA mark because it incorporates Complainant’s mark in its entirety and merely adds the generic term “my.” The Panel finds that this is insufficient to distinguish the domain name pursuant to Policy ¶ 4(a)(i). See NIIT Ltd. v. Parthasarathy Venkatram, D2000-0497 (WIPO Aug. 4, 2000) (finding that the “domain name ‘myniit.com,’ which incorporates the word NIIT as a prominent part thereof, is confusingly similar to the Complainant’s trade name and trademark NIIT”); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (finding that the “domain name MYSPORTSCENTER.COM registered by Respondent is confusingly similar to Complainant’s SportsCenter mark”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent has no rights or legitimate interests in the <myapa.org> 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). Because Respondent failed to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the <myapa.org> domain name, which is confusingly similar to
Complainant’s APA mark, to divert Internet users to a website which advertises links
to websites that sell services that compete with Complainant. Such use of the disputed domain name does not
constitute a bona fide offering of
goods and services pursuant to Policy ¶ 4(c)(i), or a legitmate noncommercial or fair use of
the domain name pursuant to Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580
(Nat. Arb. Forum Apr. 9, 2002)
(“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services
because Respondent is using the domain name to divert Internet users to
<visual.com>, where services that compete with Complainant are
advertised.”); see also Coryn
Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003)
(finding that the respondent was not using the domain names for a bona fide
offering of goods or services nor a legitimate noncommercial or fair use
because the respondent used the names to divert Internet users to a website
that offered services that competed with those offered by the complainant under
its marks).
Complainant asserts that
Respondent is neither associated with Complainant nor licensed to use
Complainant’s APA mark. Furthermore, Respondent’s WHOIS
information, as well as other information in the record, does not suggest that
Respondent is commonly known by the <myapa.org>
domain name. Therefore, the Panel finds
that Respondent is not commonly known by the disputed domain name under Policy
¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain
name when the respondent is not known by the mark); see also Wells Fargo & Co. v.
Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17,
2003) (“Given the WHOIS contact information for the disputed domain [name], one
can infer that Respondent, Onlyne Corporate Services11, is not commonly known
by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <myapa.org> domain name, which is confusingly similar to Complainant’s APA mark, to divert Internet users seeking Complainant’s psychology-related products and services to a website containing links to competing products and services. The Panel infers that Respondent earns click-through fees for diverting Internet users to third-party websites. Therefore, Respondent is taking commercial advantage of the confusing similarity between Respondent’s domain name and Complainant’s mark, and profiting from the goodwill associated with the mark. Use of the disputed domain name for this purpose suggests bad faith registration and use under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website).
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 <myapa.org> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: March 22, 2007
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