Westmore · UDRP DecisionBooz-allen.net
The Panel ordered transfer of <booz-allen.net>. It found the domain confusingly similar to the Complainant’s registered BOOZ ALLEN-formative marks, found no evidence that the Respondent had rights or legitimate interests, and concluded that the domain was registered and used in bad faith. Although the Complainant did not prove any of the specific circumstances listed in Policy paragraph 4(b)(i)-(iv), the Panel found bad faith based on the marks’ reputation and distinctiveness, the likely targeting of the Complainant, the Respondent’s failure to respond, and passive holding through a registrar default parking page.
The timeline behind booz-allen.net
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The decision illustrates that a complainant may establish bad faith even without proving one of the specific examples in Policy paragraph 4(b). A registrar default parking page can be treated as passive holding, but the finding remains fact-specific and depended here on the marks’ distinctiveness and reputation, the inference of targeting, the lack of any substantiated good-faith use, and the Respondent’s repeated silence.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Booz Allen Hamilton Inc. v. Andrea Dini Case No. D2015-1626 1. The Parties The Complainant is Booz Allen Hamilton Inc. of McLean, Virginia, United States of America (“United States”), represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, United States. The Respondent is Andrea Dini of Ballymoney, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar The disputed domain name <booz-allen.net> is registered with Dynadot, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 9, 2015. On September 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 15, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 28, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2015. The Center appointed Halvor Manshaus as the sole panelist in this matter (the “Panel”) on October 28, 2015. 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 is an American public limited liability company. It is one of the world’s largest strategy and technology consulting firms, with more than 23,000 employees working in offices located on six continents. The Complainant owns numerous trademark registrations in the United States and worldwide, including BOOZ ALLEN in the United States registered on July 20, 2010 (reg. No. 3,820,454), BOOZ ALLEN HAMILTON in the European Union registered on March 15, 2007 (reg. no. 005065347) and BOOZ-ALLEN & HAMILTON in China registered on December 28, 2000 (reg. no. 1499442). The Complainant has a considerable marketing presence and is well known, famous and recognized in the United States and around the world for its products and services offered under these trademarks. The Respondent is a private individual. The Respondent is listed as the owner of the disputed domain name <booz-allen.net>, first registered on June 22, 2015. As of the date of this decision, the disputed domain name resolves to the Registrar’s default parking page. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to trademarks in which the Complainant has rights. The disputed domain name incorporates the Complainant’s highly distinctive and famous marks in full. The Complainant asserts that the Respondent has not received any license or other permission to use the Complainant’s trademarks or to apply for or use any domain name incorporating or simulating these marks. The Respondent is not commonly known by the disputed domain name and has not acquired any trademark or service mark rights to use the name. The Respondent therefore has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant submits that the disputed domain name was registered and is being used in bad faith, based on the following assertions: (i) The Complainant’s marks have a strong reputation and are widely known and famous throughout the world, (ii) the Respondent had actual knowledge of the Complainant’s rights in the Complainant’s marks on account of a letter from the Complainant’s counsel to the Respondent of August 24, 2015, (iii) the Respondent had legal constructive notice of the Complainant’s trademark rights on account of the Complainant’s registered trademarks, and (iv) it is not possible to conceive of a plausible circumstance in which the Respondent could legitimately use the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Complainant has, in accordance with paragraph 4(i) of the Policy, requested that the disputed domain name be transferred to the Complainant. In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must establish that each of the three following elements is satisfied: 1. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and 2. the Respondent has no rights or legitimate interests in respect of the disputed domain name; and 3. the disputed domain name has been registered and is being used in bad faith. Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules of any request from the Panel, the Panel shall draw such inferences therefrom, as it deems appropriate. On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows: A. Identical or Confusingly Similar The Complainant has submitted documentation for the trademarks BOOZ ALLEN, BOOZ ALLEN HAMILTON and BOOZ-ALLEN & HAMILTON, registered in multiple jurisdictions worldwide. The Panel considers that, although the Complainant’s trademarks and the disputed domain name are not perfectly identical, there is an obvious similarity between the Complainant’s trademarks and the disputed domain name <booz-allen.net>. The trademark BOOZ ALLEN lacks the hyphen, whereas BOOZ-ALLEN HAMILTON has the additional term “HAMILTON” which is not included in the disputed domain name. In the Panel’s assessment, the above described differences are insufficient to distinguish the disputed domain name from the Complainant’s trademarks. It has previously been stated in a number of UDRP decisions that the addition of hyphens and extensions, such as a hyphen and the generic Top-Level Domain (“gTLD”) “.net” in this case, can be ignored as trivial (see TV Azteca S.A.B. de C.V. v. Johny Romero (aka Johny Alfonso Romero Rocha)/ Total Play Inc. , WIPO Case No. D2012-2533 ; Fort Knox National Company v. Ekaterina Phillipova , WIPO Case No. D2004-0281 ; and, TREDNET, Direct Distribution International Ltd (“DDI”) v. WhoisGuard Namecheap / BODYPOWER , WIPO Case No. D2012-2001 ). The Panel thus concludes that the disputed domain name is confusingly similar to trademarks in which the Complainant has rights. B. Rights or Legitimate Interests The Panel finds that the Respondent has not received any license or other permission to use the BOOZ ALLEN marks or to apply for or use any domain name incorporating or simulating these marks. Further, the Panel has not been presented with, or otherwise discovered, any evidence showing that the Respondent is commonly known by the disputed domain name or that it has acquired any trademark or service mark rights to use the name. The terms “Booz” and “Allen” or “Booz-Allen” are not words with a common dictionary meaning in the English language. As concerns the use of these terms in the Complainant’s trademarks, they refer to the family names of two of the company’s founders. As such, these terms used together are most commonly associated with the Complainant’s business and trademarks. The presented evidence referred to by the Complainant is, in the Panel’s view, sufficient to establish a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. As held by the administrative panel in Ticketmaster Corporation v. Global Access , WIPO Case No. D2007-1921 , the Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name when such prima facie case is made. The Respondent has not replied to the Complainant’s contentions. The Panel thus concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Complainant has not submitted proof with regards to paragraph 4(b) no. (i) through (iv) of the Policy, which provides for specific circumstances that shall be considered as evidence of the registration and use of a domain name in bad faith. The question then is whether there is any other evidence for the Respondent’s registration and use of the disputed domain name in bad faith. The Panel considers it likely that the Respondent was aware of the Complainant’s well-known and distinctive trademarks BOOZ ALLEN and/or BOOZ ALLEN HAMILTON at the time of registration of the disputed domain name. Further, the Panel concludes that the Respondent sought to register the disputed domain name because of its association with the Complainant, the Complainant’s reputation, the Complainant’s trademarks and the Complainant’s business. Taken together with the fact that the Respondent has not filed any Response in these proceedings, the Complainant has, in the Panel’s view, established on balance that the Respondent registered the disputed domain name in bad faith. With regards to the question of use in bad faith, the Panel notes that the disputed domain name <booz-allen.net> resolves to the Registrar’s default parking page. It is the opinion of the Panel that such default Registrar parking should be considered as equivalent to the disputed domain name not resolving at all – so-called “passive holding”. As held in Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 , and confirmed in later UDRP decisions, the passive holding of a domain can, in certain circumstances, constitute a domain name being used in bad faith. As noted in Telstra and adhered to in later decisions, (see Ladbroke Group Plc v. Sonoma International LDC , WIPO Case No. D2002-0131 ; and Sanofi-aventis v. Gerard Scarretta , WIPO Case No. D2009-0229 ), the question as to which circumstances may constitute a domain name being used in bad faith cannot be answered in the abstract, and must instead be answered in respect of the particular facts of a specific case. In the present case, the Panel bases its decision in this regard on the following circumstances: (i) the Complainant’s trademarks have a strong reputation, are highly distinctive and widely known, and the community trademark BOOZ ALLEN HAMILTON is registered in the Respondent’s jurisdiction; (ii) the Respondent has not substantiated any actual or contemplated good faith use by him of the disputed domain name, and it is difficult to conceive of any such good faith use; (iii) the Respondent has failed to respond to the Complainant’s correspondence regarding the registration and use of the disputed domain name, and has similarly failed to respond to the Complainant’s contentions in this dispute; and (iv) taking the above into account, it is difficult to conceive of a plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, or an infringement of the Complainant’s rights under trademark law. The Panel thus concludes that the Respondent has 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 <booz-allen.net> be transferred to the Complainant. Halvor Manshaus Sole Panelist Date: November 11, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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