Complainant is American Medical Alert Corp. of Long Island City, New York, United States of America, represented by Moses & Singer LLP, United States of America.
Respondent is Robert Seketa of Euclid, Ohio, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Moniker Online Services, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and MediationCenter (the “Center”) on November 4, 2011. On November 8, 2011, the Center transmitted by e-mail to Moniker Online Services, LLC a request for registrar verification in connection with the Domain Name. On November 8, 2011, Moniker Online Services, LLC. transmitted by e-mail to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the Domain Name.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 11, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was December 1, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 2, 2011.
The Center appointed Robert A. Badgley as the sole panelist in this matter on December 14, 2011. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant markets health and safety monitoring technologies, and has used the trademark AMERICAN MEDICAL ALERT since 1981 to identify its medical emergency equipment. This mark was registered with the United States Patent and Trademark Office in 2004.
The Domain Name was registered on January 20, 2005. The website to which the Domain Name resolves purports to provide information about medical alert devices and related products. The website also contains several hyperlinks to medical alert devices and services that are in direct competition with Complainant’s products.
According to Complainant and a printout annexed to the Complaint, Respondent’s LinkedIn profile describes him as “CEO of RGS Technologies and Business Development for MedMonitoring.” The LinkedIn profile also identifies Respondent as having worked in the medical alert industry since 2000, and as being the registrant of the domain name . The website to which that domain name, , resolves also sells products that compete with Complainant’s products. 5. Parties’ Contentions A. Complainant
Complainant contends that all thee elements of paragraph 4(a) of the Policy are present. The salient factual allegations supporting the Complaint are set forth above. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name 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. A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the mark AMERICAN MEDICAL ALERT through longstanding use and registration. The Domain Name is identical to the mark.
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Although Complainant bears the burden of proof on the “rights or legitimate interests” issue, the panel in PepsiCo, Inc. v. Amilcar Perez Lista d/b/a Cybersor,WIPO Case No. D2003-0174, correctly observed:
“A respondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a complainant which are not unreasonable and leaves the respondent open to the legitimate inferences which flow from the information provided by a complainant.”
As noted above, Respondent did not file a Response and hence did not effectively rebut any of Complainant’s assertions.
There is no evidence that Respondent has ever been authorized to use Complainant’s mark in a domain name or otherwise. Likewise, there is no evidence that Respondent is commonly known by the Domain Name, or has made substantial preparations to use the Domain Name in connection with a bona fide offering of goods or services. The Domain Name resolves to a website with links to sellers of medical alert goods and services in direct competition with Complainant. That use is decidedly not a bona fide use for purposes of the “rights or legitimate interests” element under the Policy.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel finds that Complainant has made out a “bad faith” case under paragraph 4(b)(iv) of the Policy. Given the undisputed evidence that Respondent has worked in the same industry as Complainant, it is highly probable that Respondent had Complainant’s mark in mind when registering the Domain Name. It is also highly probable, in the Panel’s view, that Respondent registered the Domain Name for the purpose of attracting, for commercial gain, Internet users to his website by creating a likelihood of confusion between Complainant’s mark and the Domain Name. The Panel infers from the content of the website at the Domain Name, that Respondent derives some sort of revenue from the hyperlinks to Complainant’s competitors. Respondent’s intent to profit from his use of the Domain Name has been alleged, is supported by record evidence, is plausible, and has not been denied by Respondent. This appears to be a clear case of cybersquatting.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied. 7. Decision
For 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 Complainant.
Robert A. Badgley
Sole Panelist
Dated: December 19, 2011
Full & Egal Universal Law Academy