The Complainant is New Horizons Education Corporation of Anaheim, California, United States of America, represented by Neal & McDevitt, LLC, United States of America.
The Respondent is New Horizons Louisville of Louisville, Kentucky, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 19, 2013. On March 20, 2013, the Center transmitted to the Registrar a request for registrar verification in connection with the disputed domain name. On March 21, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent was listed as the registrant and providing the contact details for the disputed 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 the Respondent of the Complaint, and the proceedings commenced on March 22, 2013. In accordance with the Rules, paragraph 5(a), the due date for the Response was April 11, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 12, 2013.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on April 18, 2013. 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
The Complainant provides computer training services. It has obtained a number of registrations for various marks that include “NEW HORIZONS”, including one registered in the United States Patent and Trademark Office, on May 21, 1985, for “educational services: namely, conducting courses in the operation of computer systems.”
The Respondent registered the dispute domain name on September 14, 2012. 5. Parties’ Contentions A. Complainant
The Complainant contends principally that: (i) the disputed domain name is identical or confusingly similar to marks in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith.
The Complainant also states:
“Respondent was previously employed by Complainant’s authorized franchisee in Louisville, Kentucky. Respondent was never authorized to register this domain name. Additionally, Respondent is no longer affiliated or connected with Complainant and Complainant has never, impliedly or expressly, given its consent to Respondent to use the NEW HORIZONS® Marks in a domain name, or otherwise.” B. Respondent
The Respondent did not reply to the Complainant’s contentions. Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint when there has been no Response filed. Under paragraph 14(b), the Panel may draw appropriate inferences from the Respondent’s default. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel concludes that the Complainant has established rights in its NEW HORIZONS mark by using the mark for its services. The only item in the case record that challenges this view is the Respondent’s bald assertion to the Complainant’s counsel, in an email before the commencement of this proceeding, that “the term ‘New Horizons’, is rather a generic term”. (Complaint, Annex F.) The Panel also determines that the disputed domain name is confusingly similar to the Complainant’s mark, NEW HORIZONS. The mere addition of a geographical term along with the generic top level domain “.com” does not defeat confusing similarity.
The first element of paragraph 4(a) of the Policy is demonstrated. B. Rights or Legitimate Interests
The Panel determines that the Complainant has met its initial burden of making a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. The burden then shifts to the Respondent to demonstrate any such rights or legitimate interests. The Respondent has defaulted. The Panel is unable to ascertain any evidence that would indicate any right or legitimate interest that the Respondent has in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is also demonstrated. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that are evidence of the registration and use of a domain name in bad faith.
After the disputed domain name became operational, Internet users who resorted to it were directed to a website that contained videos and information relating to computer training services. Counsel for the Complainant then informed the Respondent that the Respondent’s website infringed on the Complainant’s trademark and copyright rights. In response, the Respondent stated, “All information, and links, related to New Horizons Computer Learning, have been removed from the splash page. This removes any ongoing confusing [sic] regarding this URL.” (Complaint, Annex F.) The Respondent also offered, “I will allow New Horizons Computer Learning Centers, or their Representatives to have first right of refusal, on the purchase of this URL for One Thousand Dollars ($1,000).” Id. The content of the website for the disputed domain name was then revised, and, as of the commencement of this proceeding, the website includes the following text: “Expand your Horizons and Web profile in the Louisville area with this URL. For sale and transfer today” and “Please email us to make an offer”. (Complaint, Annex G.)
The Complainant urges that the bad faith element is satisfied here, under paragraph 4(b)(i) of the Policy, which refers to circumstances indicating that the Respondent registered or acquired the disputed “domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark ..., for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name:” The Panel agrees.
The Panel would also find the bad faith requirement under paragraph 4(b)(iv), in that by using the domain name, the Respondent “intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] website …, by creating a likelihood of confusion with the [C]omplainant’s mark as to the source, sponsorship, affiliation, or endorsement” of the Respondent’s website.
The third element 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 disputed domain name be transferred to the Complainant.
Ilhyung Lee
Sole Panelist
Date: May 2, 2013
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