WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION A Operations Inc. v. Belize Domain WHOIS Service Case No. D2009-1057 1. The Parties
The Complainant is A Operations Inc. of Provo, Utah, United States of America (“USA”), represented by Fillmore Spencer, LLC, USA.
The Respondent is Belize Domain WHOIS Service of Belmopan, Belize. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Domain Contender, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2009.
The Center transmitted its request for registrar verification to the Registrar on August 6, 2009. The Registrar replied on August 7, 2009, stating that it had received a copy of the Complaint; that the Respondent was the current registrant of the Domain Name; that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name; that the Domain Name was active and would remain locked during this proceeding; that the registration agreement was in English; and that its terms of service provided that the agreement was governed by the laws of the Cayman Islands. The Registrar also provided the full contact details for the Domain Name.
The Center notified the Complainant by email of August 11, 2009 that the Complaint was formally deficient in that the registrar of the Domain Name was incorrectly identified. The Complainant submitted an amendment to the Complaint rectifying this deficiency by email the same day.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the UDRP, the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on August 12, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 1, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 8, 2009.
The Center appointed Jonathan Turner as the sole panelist in this matter on September 8, 2009. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
Having reviewed the file, the Panel is satisfied that the Complaint together with the amendment to the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant provides the world's leading online collection of family history resources through a website at “www.a” and offers genealogical research services under the mark ANCESTRY. It has over 4 billion historical records and nearly 1 million subscribers. It commenced its use of the mark ANCESTRY for genealogical services in 1983 and its use of the website at “www.a” in 1997.
The Complainant has registered ANCESTRY as a trademark in the USA, European Union and Australia and ANCESTRY.COM as a trademark in the USA. It registered the domain name in 1995 and has registered other domain names containing “ancestry” as the second level domain with various different top level domains at various dates since then.
The Respondent registered the Domain Name in 2005 and is using it for a website which displays links to websites of the Complainant's competitors. The Complainant sent a cease a desist letter to the Respondent on May 20, 2009, to which the Respondent did not reply. 5. Parties' Contentions A. Complainant
The Complainant contends that it has registered and common law rights in the marks ANCESTRY and ANCESTRY.COM and that the Domain Name is confusingly similar to these marks.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name, pointing out that its use of the marks ANCESTRY and ANCESTRY.COM predated the registration of the Domain Name.
Finally, the Complainant alleges that the Domain Name was registered and is being used in bad faith. The Complainant states that the Respondent's use of the Domain Name can only have been an intentional attempt to attract Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website or products or services on it. The Complainant also relies on the Respondent's failure to reply to its cease and desist letter as further evidence of bad faith.
The Complainant requests a decision that the Domain Name be transferred to it and that the Respondent be barred from registering any other domain name containing “a” or variant spellings of the same. B. Respondent
As stated above, the Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
On the evidence, the Panel finds that the Complainant has registered and unregistered rights in the marks ANCESTRY and ANCESTRY.COM.
The Panel further finds that the Domain Name is confusingly similar to these marks. The addition of the number 1 is liable to be overlooked by Internet users.
The first requirement of the Policy is satisfied. B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Panel does not regard the Respondent's use of the Domain Name for a website displaying links, apparently generated automatically, as being in connection with a bona fide offering of goods or services. In the Panel's view the Respondent is not providing any real service. Furthermore, the use is not bona fide, but rather is carried on in bad faith in order to profit through click-through commissions from the diversion of Internet users through confusion with the Complainant's well-established mark.
The Respondent is not commonly known by the Domain Name and has not made legitimate noncommercial or fair use of the Domain Name without intent to divert consumers for commercial gain.
On the evidence, there is no other basis on which the Respondent could claim rights or legitimate interests in respect of the Domain Name. The second requirement of the Policy is satisfied. C. Registered and Used in Bad Faith
The Panel finds on the undisputed evidence that, by its use of the Domain Name, the Respondent has intentionally attempted to attract Internet users to its website, for commercial gain in the form of click-through commissions, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website.
In accordance with paragraph 4(b)(iv) of the Policy, this constitutes evidence of registration and use of the Domain Name in bad faith. This presumption is not displaced by any other evidence on the file. In particular, the Panel is satisfied that the Complainant's marks were well established before the Respondent registered and commenced its use of the Domain Name for a website displaying links to the Complainant's competitors. In these circumstances, there is no reason to doubt the inference that the Domain Name was registered in bad faith for the purpose of exploiting the reputation of the Complainant's mark.
The Panel concludes that the Domain Name was registered and is being used in bad faith. The third requirement of the Policy is satisfied. D. Remedy
In accordance with paragraph 4(i) of the Policy, the remedies available to the Complainant in this proceeding are limited to requiring cancellation of the Domain name or its transfer to the Complainant. The Complainant has requested transfer of the Domain Name and it is appropriate to grant this remedy. The Panel has no jurisdiction to grant the further remedy sought by the Complainant of debarring the Respondent from registering any other domain name containing “a” or variant spellings of the same. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, , be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Dated: September 17, 2009
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