Westmore · UDRP DecisionEducationtestingservice.com
The Panel ordered transfer of <educationtestingservice.com>. It found the domain confusingly similar to the EDUCATIONAL TESTING SERVICE mark because it merely omitted the letters “al”; that the Respondent lacked rights or legitimate interests because the domain was used for a pay-per-click page related to the Complainant’s field; and that the near-duplication of the mark, competing links, use of an identity-shielding service, and offer to sell the domain to the Complainant for USD 3,040 established bad-faith registration and use.
The timeline behind educationtestingservice.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind educationtestingservice.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates a cumulative bad-faith record involving a near-exact typographical variation of a longstanding mark, pay-per-click links tied to the trademark owner’s field, identity shielding, and a post-demand offer to sell the domain. The same commercial use also helped establish the absence of rights or legitimate interests.
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 Educational Testing Service v. Domain Hostmaster, Customer ID: 04460249369481 / Lisa Katz, Domain Protection LLC Case No. D2017-1516 1. The Parties The Complainant is Educational Testing Service of Princeton, New Jersey, United States of America (“United States”), represented by Jones Day, United States. The Respondent is Domain Hostmaster, Customer ID: 04460249369481 / Lisa Katz, Domain Protection LLC of Dallas, Texas, United States. 2. The Domain Name and Registrar The disputed domain name <educationtestingservice.com> is registered with Fabulous.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 3, 2017. On August 4, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 13, 2017, 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 August 14, 2017, 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 August 18, 2017. 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 21, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 10, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 14, 2017. The Center appointed Steven Auvil as the sole panelist in this matter on October 4, 2017. 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, Educational Testing Service (“ETS”), is a nonprofit organization with its principal place of business in Princeton, New Jersey. It was formed in 1947. The Complainant develops and administers tests for measuring skills, academic aptitude and achievement, and occupational and professional competency for Americans and citizens of other countries seeking college and graduate school admission; licenses for technical and paraprofessional occupations; and teacher certification, among other services. The Complainant began using the EDUCATIONAL TESTING SERVICE trademark (the “EDUCATIONAL TESTING SERVICE Mark”) nearly 70 years ago in 1948 and the Complainant has acquired substantial common law and statutory rights in the mark since this time. The EDUCATIONAL TESTING SERVICE Mark registered on May 26, 1981 under U.S. Reg. No. 1,155,531. ETS has been using the ETS trademark (the “ETS Mark”), an abbreviation of its name, since 1949. In subsequent years, the Complainant registered a number of other marks that include the ETS phrase, for various products and services related to testing. The Complainant owns multiple registrations for domain names that incorporate the EDUCATIONAL TESTING SERVICES Mark and the ETS Mark. Specifically, the Complainant registered the domain names <educationaltestingservice.org> and <educationaltestingservice.com> on February 29, 2000. The Respondent registered the disputed domain name on May 12, 2005 using Whois Privacy Services Pty Ltd. The disputed domain name resolves to a website that hosts links to third-party websites including the Complainant’s marks and offering competing services, especially in the field of English proficiency testing. 5. Parties’ Contentions A. Complainant The Complainant contends that: (i) the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights; (ii) the 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. When the Complainant discovered the disputed domain name, it sent the Respondent cease and desist letters warning that the Respondent was using the Complainant’s mark without authorization. In response, the Respondent offered to sell the disputed domain name to the Complainant for USD 3,040.00. The Complainant refused to pay the requested price and sent another letter to the Respondent. The Respondent did not respond to the letter. In its complaint, ETS alleges that the Respondent’s omission of two letters (“al”) to its registered mark is a “clear case of typosquatting.” The Complainant further contends that the Respondent is attempting to benefit from its goodwill and cause consumer confusion regarding the source of the website. The Complainant then contends that the Respondent’s use of the disputed domain name, incorporating the Complainant’s registered mark, as a pay-per-click site does not constitute a bona fide commercial use of the domain name. Finally, the Complainant contends that the Respondent’s actions, including typosquatting, profit from pay-per-click advertising, and payment demand are evidence of registration and use in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, the Complaint must prove the following: (i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. (ii) The Respondent has no rights or legitimate interests in the disputed domain name. (iii) The disputed domain name was registered and is being used in bad faith. Because the Respondent failed to respond to the Complaint, the Panel may accept all reasonable allegations set forth by the Complainant as true and accurate. A. Identical or Confusingly Similar Based on its trademark registration and longstanding use, the Panel finds that the Complainant has rights in the EDUCATIONAL TESTING SERVICE Mark. The Panel also finds that the disputed domain name is identical or confusingly similar to the Complainant’s EDUCATIONAL TESTING SERVICE Mark. The difference, omission of the letters “al,” is not sufficient to distinguish the recognizable aspects of the relevant mark. It is well established that a “minor difference does not significantly diminish the confusing similarity between the mark” and the disputed domain name. Apple Inc. v. Hung-Yen Cheng , WIPO Case No. D2014-1086 . Accordingly, the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The second proof requirement is that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that this proof requirement is satisfied here. A complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), section 2.1 . There is no evidence that the Respondent is commonly known by the disputed domain name, and the Complainant has alleged that the Respondent is not a licensee or otherwise affiliated with the Complainant. The Respondent is using the disputed domain name as a pay-per-click landing page relating to the field in which the Complainant is active, namely, English proficiency testing. This is not a bona fide commercial use of a domain name. Merck Sharp & Dohme Corp. v. Domain Administrator, PrivacyGuardian.org / George Ring, DN Capital Inc. , WIPO Case No. D2017-0302 . Accordingly, the Panel finds nothing in the evidence to suggest that the Respondent has any rights or legitimate interests in the disputed domain name. For these reasons, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Finally, the Panel finds that Complainant has established bad faith registration and use under paragraph 4(b) of the Policy. The Panel finds that it is unlikely that the Respondent was unware of the Complainant’s SERVICE Mark at the time it registered and used the disputed domain name as evidenced by Respondent’s near-duplication of the mark in the disputed domain name used in connection with the field in which the Complainant is active, namely, English proficiency testing. WIPO Overview 3.0 , section 3.1.4 . The Panel notes that the disputed domain name resolves to a pay-per-click website, thus “intentionally attempt[ing] to attract, for commercial gain, Internet users to the Respondent’s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement[.]” Klarna AB v. Domain Admin, Information Privacy Protection Services Limited / zhangdongxiang , WIPO Case No. D2017-1448 . It is also appears that the Respondent sought to conceal her identity by registering the dispute domain name using an identity-shielding service. Such behavior “further corroborates the finding that Respondent acted in bad faith.” Philip Morris USA Inc. v. Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyProtect.org / Andrejs B Pauls , WIPO Case No. D2017-0474 . Still further evidence of bad faith is the Respondent’s offer to sell the disputed domain name to the Complainant for a significant sum of money. J Sainsbury plc and Argos Limited v. Saida Khafif , WIPO Case No. D2017-0438 . In short, the Complainant has satisfied paragraph 4(a)(iii) of the Policy. 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, <educationtestingservice.com> be transferred to the Complainant. Steven Auvil Sole Panelist Date: October 18, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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