The Complainant is AlliedBarton Security Services LLC of King of Prussia, Pennsylvania, United States of America, represented by Cozen O’Connor, United States of America.
The Respondent is P, Domain Admin of Queensland, Australia / Bob Pham of Hanoi, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name is registered with Media Elite Holdings Limited (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 4, 2013. On December 5, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 12, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 13, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 13, 2013.
The Center verified that the Complaint together with the amended 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 amended Complaint, and the proceedings commenced on December 18, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 7, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 8, 2014.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on January 10, 2014. 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 in these proceedings is AlliedBarton Security Services LLC, a Delaware company organized under the laws of the United States of America. The Complainant has a Pan-American reputation in, among others, the provision of security services in connection with its marks mentioned below. It was established in 1957.
The Complainant is the owner of trademark registrations in the United States of America as below:
a. U.S. Reg. No. 3,144,420 for the ALLIEDBARTON & Design mark for “security services in the nature of security guard services: evaluating and assessing on-site security programs for others: and property surveillance and security protective services” in International Class 45, filed on February 21, 2005 and registered on September 19, 2006.
b. U.S. Reg. No. 3,144,421 for the ALLIEDBARTON mark for “security services in the nature of security guard services: evaluating and assessing on-site security programs for others: and property surveillance and security protective services” in International Class 45, filed on February 21, 2005 and registered on September 19, 2006.
c. U.S. Reg. No. 3,152, 959 for ALLIEDBARTON SECURITY SERVICES mark for “security services in the nature of security guard services: evaluating and assessing on-site security programs for others: and property surveillance and security protective services” in International Class 45, filed on February 21, 2005 and registered on October 10, 2006.
d. U.S. Reg. No. 3,223,891 for the ALLIEDBARTON SECURITY SERVICES & Design mark for “security services in the nature of security guard services: evaluating and assessing on-site security programs for others: and property surveillance and security protective services” in International Class 45, filed on February 21, 2005 and registered on April 3, 2007.
The Complainant owns also the domain name registered on July 21, 2011.
The disputed domain name was created on September 11, 2013. The Respondent registered and uses the disputed domain name for a pay-per-click (PPC) website advertising services including similar services to those offered by the Complainant under its marks.
The Panel is unaware of any further information relative to this case with regards to the Respondent, except that which is given by the Complainant and mentioned above. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name and has not been commonly known by the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Before engaging in the threefold discussion of paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue relating to the default of the Respondent. The implications of a default in this case are telling since the Complainant has the burden of proof, according to paragraph 4(a) of the Policy (“In the administrative proceeding, the complainant must prove that each of these three elements are present”). As such, the Panel can not merely grant the Complainant’s request automatically due to the default, but it has to examine instead the evidence presented to determine whether or not the Complainant has proved its case, as required by the Policy. See FNAC v. Gauthier Raymond,WIPO Case No. D2004-0881; Sonofon A/S v. Vladimir Aleksic,WIPO Case No. D2007-0668; Gaudi Trade SpA v. Transure Enterprise Ltd,WIPO Case No. D2009-1028.
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has presented evidence to demonstrate that it owns the rights in the trademark ALLIEDBARTON in the United States of America and domain name.
The mere fact that the Respondent has added to the ALLIEDBARTON mark the generic Top-Level Domain (gTLD) suffix “.com” and the word “access” at the end does not to this Panel affect the essence of the matter: the disputed domain name is identical or confusingly similar to the trademark of the Complainant and, in the circumstances of this case, is by itself sufficient to establish the criterion of identity or confusing similarity for purposes of the Policy, as many UDRP panels have found in the past, see e.g., Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd.,WIPO Case No. D2002-1021; DFDS A/S v. NOLDC INC,WIPO Case No. D2006-1070; American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov,WIPO Case No. D2006-0252.
In view of the above, the Panel finds that the Complainant has discharged its burden of proof on this point and holds that the disputed domain name is identical or confusingly similar to the Complainant’s trademark ALLIEDBARTON. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of three circumstances which, if found by a panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant’s right to and the legitimate interest in a domain name. These examples are discussed in turn below, with regard to the specific facts of this case.
(i) Use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute: In the Panel’s view, the Respondent is not using the disputed domain name to make any bona fide offering of goods or services, in light of the use of the disputed domain name in connection with a PPC website. Without the Complainant’s authorization, the Respondent uses the disputed domain name to lure Internet users to other commercial websites offering similar services to those offered by the Complainant, according to its uncontested allegations.
(ii) An indication that the Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark rights: In this case, there is no such indication from the present record.
(iii) Legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue: Again, in this case there is no such indication from the record, given the apparent commercial use of the website.
Further the Respondent does not seem to have any trademark registrations including the term “AlliedBarton”.
Additionally, it is to be noted that the Respondent did not present evidence of any license by the Complainant, with whom there seems to exist no relationship whatsoever.
As a conclusion on this point, the Panel finds that the Complainant has established an uncontested, prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant’s argumentation on this point is mainly based on the circumstance mentioned in paragraph 4(b)(iv) of the Policy in order to demonstrate the Respondent’s bad faith registration and use of the disputed domain name.
In reviewing the present case, it appears that the Respondent has registered the disputed domain name in order to attract, for commercial gain, Internet users to websites offering services similar to those offered by the Complainant, by creating a likelihood of confusion with the Complainant’s trademarks, according also to the uncontested allegations of the Complainant.
The bad faith of the Respondent is also reinforced through a simple, logical process as well, in the sense that it would indeed be highly unlikely that the Respondent would register randomly and unintentionally a domain name that is identical or confusingly similar to the Complainant’s ALLIEDBARTON trademark. Rather, it seems to this Panel more likely that such registration and use would be motivated by a hoped-for capitalization, i.e., commercial gain from the Complainant’s reputation, as mentioned above.
The Panel also notes the default of the Respondent, which in the present circumstances “reinforces the inference of bad faith registration and bad faith use”. The Hongkong and Shanghai Banking Corporation Limited v. Bill Lynn,WIPO Case No. D2001-0915.
As a consequence of the above, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
Accordingly, the Panel finds that the Complainant has successfully proven that the disputed domain name is identical or confusingly similar to trademarks and service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith. 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.
Christos A. Theodoulou
Sole Panelist
Date: January 17, 2014
Full & Egal Universal Law Academy