Westmore · UDRP DecisionAjctoday.com
The Panel ordered transfer of <ajctoday.com>. It found the domain confusingly similar to the Complainant’s AJC.COM mark because it combined the dominant AJC feature with the dictionary word “today.” The Respondent lacked rights or legitimate interests, and the prior use of a website closely resembling the Complainant’s website supported findings that the domain was registered and used in bad faith to attract Internet users for commercial gain.
The timeline behind ajctoday.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The case illustrates how a domain that combines the recognizable dominant portion of a newspaper-related mark with the word “today” can satisfy confusing similarity, particularly where the domain is used for a site resembling the trademark owner’s site. The decision also shows that later disabling of the domain following a DMCA notice does not erase evidence arising from its prior use.
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 Cox Enterprises, Inc. v. Miguel Delsel Case No. D2020-2676 1. The Parties The Complainant is Cox Enterprises, Inc., United States of America (“United States”), represented by Kilpatrick Stockton, LLP, United States. The Respondent is Miguel Delsel, United States. 2. The Domain Name and Registrar The disputed domain name <ajctoday.com> is registered with Internet Domain Service BS Corp (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 14, 2020. On October 14, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 15, 2020, 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 October 28, 2020 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 October 30, 2020. 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 November 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 7, 2020. The Center appointed William F. Hamilton as the sole panelist in this matter on December 16, 2020. 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 owns and publishes the Atlanta Journal-Constitution (the “newspaper”). The newspaper is the only major daily newspaper publishing in Atlanta, Georgia, United States and is one of the top twenty newspapers in the United States. The Complainant launched the website “www.ajc.com” (the “website”) in 1998 to create an online channel to promote goods and services offered in connection with the newspaper. The website has an average of 90.4 million monthly page views and 8.9 million monthly unique visitors. On February 26, 2002, the Complainant obtained Registration No. 2,542,341 for the mark AJC.COM (the “Mark”) from the United States Patent and Trademark Office. The Complainant also owns thirteen additional United States federal and state registrations for trademarks incorporating the term “AJC” including, but not limited to, AJC ATLANTA, NEWS.NOW, AJCACCESSATL, and AJCJOBS, obtained over the past 20 years. The Respondent registered the disputed domain name on August 13, 2020. The resolution of the disputed domain name to Respondent’s website was removed by the Registrar in response to the Complainant’s submission of a notice pursuant to the Digital Millennium Copyright Act in the United States. Previously the disputed domain name resolved to a website that closely resembled the Complainant’s website. The disputed domain name currently resolves to an “Access Denied” error. 5. Parties’ Contentions A. Complainant The Complainant asserts the disputed domain name is confusingly similar to the Complainant’s Mark because the disputed domain name wholly incorporates the dominant feature of the Mark in combination with the dictionary word “today”. The Complainant asserts that the Respondent has no rights or legitimate interest in the disputed domain name because the Respondent has never been known by the Mark and there is no evidence of any bona fide business by the Respondent using the Mark or the disputed domain name. Finally, the Complainant asserts the disputed domain name was registered and used in bad faith to attract unsuspecting internet consumers to the Respondent’s commercial website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed the Complainant must satisfy the Panel that: (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 respect of the disputed domain name; and (iii) the disputed domain name was registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain name is confusingly similar to the Complainant’s Mark. The disputed domain name is confusingly similar to the Complainant’s Mark because the disputed domain name is composed by adding the dictionary word “today” as a suffix to the dominant “AJC” feature of Complainant’s Mark. The utilization of a common dictionary word as a suffix attached to a registered trademark, or the dominant feature thereof, will not avoid a finding of confusing similarity. The Nasdaq Stock Market, Inc. v. H. Pouran , WIPO Case No. D2002-0770 (transferring <nasdaqtoday.com> because addition of word “today” does not avoid a finding of confusing similarity); Carfax, Inc. D/B/A Carfax v. Charlie Keller , WIPO Case No. D2001-0922 (addition of word “today” as a suffix to a registered mark does not avoid confusing similarity). Moreover, the wholesale incorporation of the dominant feature of the Complainant’s Mark into the disputed domain name is sufficient in this case to establish confusing similarity for the purposes of the Policy. Yellow Corporation v. MIC, WIPO Case No. D2003-0748 ; Playboy Enterprises International, Inc. v. John Taxiarchos, WIPO Case No. D2006-0561 ; Dr. Ing. h.c. F. Porsche AG v. Vasiliy Terkin , WIPO Case No. D2003-0888 . While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Complainant has met its burden under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has specifically disavowed providing the Respondent with permission to use the disputed domain name or the Mark. There is no evidence that the Respondent has conducted any bona fide business under the disputed domain name. Previously the disputed domain name resolved to a website that closely resembled the Complainant’s website. The disputed domain name does not resemble the Respondent’s name. The Respondent did not respond to the Complaint and has failed to come forth with any evidence showing any rights or legitimate interests in the disputed domain name. Moreover, the disputed domain was registered using a privacy shield to conceal the Respondent’s identity. The Complainant has thus established a prima facie case which has not been rebutted by the Respondent. F.Hoffmann-La Roche AG v. Fred , WIPO Case No. D2006-0246 ; see also WIPO Overview 2.1. The Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel finds the disputed domain name was registered and used in bad faith. The Panel finds on the evidence presented that the Respondent registered the disputed domain name to lure and attract Internet users to the Respondent’s website for commercial gain. The registration of the disputed domain name itself demonstrates that the Respondent was aware of the Complainant’s Mark and that the Complainant registered the disputed domain name in bad faith using the dominant feature of Complainant’s Mark to attract internet customers to the Respondent’s website. The Nasdaq Stock Market, Inc. v. H. Pouran , WIPO Case No. D2002); Carfax, Inc. D/B/A Carfax v. Charlie Keller , WIPO Case No. D2001-0922 ; see generally WIPO Overview 3.1.4 . It strains credulity to believe that the Respondent was unaware of the Complainant’s Mark and willy-nilly composed the disputed domain name by adding a common dictionary term used in the newspaper publishing business to the dominant feature of the Complainant’s Mark. Previously the disputed domain name resolved to a website that closely resembled the Complainant’s website. The Respondent resides in a geographical location near the distribution of the Complainant’s newspaper. It is inconceivable that the Respondent launched its own newspaper website without knowledge of the Complainant’s online presence and website. An elementary Internet search would have disclosed the Complainant’s Mark. The Mark is sufficiently distinctive and well-known such that it is difficult to conceive of any use that the Respondent might make of the disputed domain name without the Complainant’s consent that would not involve bad faith. Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 . Finally, the fact that the disputed domain name resolved to a website that closely resembled the Complainant’s website is further evidence of bad faith registration and use. Electrum Technologies GmbH v. Host Master, 1337 Services LLC , WIPO Case No. D2019-1565 (bad faith where the respondent impersonated complainant’s website). The Complainant has met its burden under 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 <ajctoday.com>be transferred to the Complainant. William F. Hamilton Sole Panelist Date: December 24, 2020
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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