Advantahome.net

The timeline behind advantahome.net

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Advanta Corp. v. Andrew Miller Claim Number: FA0802001142903 PARTIES Complainant is Advanta Corp. (“Complainant”), represented by Bruce A. McDonald, of Schnader Harrison Segal & Lewis LLP, Pennsylvania, USA. Respondent is Andrew Miller (“Respondent”), Utah, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <advantahome.net>, registered with Fabulous.com Pty Ltd. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Honorable Karl V. Fink (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 6, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 7, 2008. On February 7, 2008, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <advantahome.net> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On February 15, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 6, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@advantahome.net by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On March 12, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <advantahome.net> domain name is confusingly similar to Complainant’s ADVANTA mark. 2. Respondent does not have any rights or legitimate interests in the <advantahome.net> domain name. 3. Respondent registered and used the <advantahome.net> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Advanta Corp., is a company that offers credit cards and financial services to small businesses and professionals. As part of this business, Complainant offers homeowner’s insurance and mortgage loans for homes. Complainant first registered its ADVANTA mark with the United States Patent and Trademark Office (“USPTO”) on April 12, 1988 (Reg. No. 1,484,579). In addition, Complainant has several other registrations with the USPTO for its ADVANTA marks. Respondent registered the disputed domain name on July 28, 2007. Respondent’s <advantahome.net> domain name displays a parked website which offers advertisements and links for third-party websites, some of which directly compete with Complainant’s mortgage business. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar Complainant holds several registrations for its ADVANTA mark with the USPTO. The Panel finds this is adequate evidence that Complainant has rights in its ADVANTA mark pursuant to Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”); see also Expedia, Inc. v. Inertia 3D, FA 1118154 (Nat. Arb. Forum Jan. 18, 2008) (“Complainant asserts rights in the mark through its registration of the mark with the United States Patent and Trademark Office. This registration sufficiently establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”). Respondent’s <advantahome.net> domain name fully incorporates Complainant’s ADVANTA mark with the descriptive term “home.” The term “home” is descriptive of Complainant’s business which offers home insurance and mortgage products and services. Additionally, panels have generally held the addition of the generic top-level domains (“gTLD”) “.net” is irrelevant when determining whether a disputed domain name is identical or confusingly similar to a mark. Therefore, the Panel finds Respondent’s <advantahome.net> domain name is confusingly similar to Complainant’s ADVANTA mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel finds Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has alleged Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant presents a prima facie case supporting these allegations, the burden shifts to Respondent to establish it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has presented a sufficient prima facie case to support its allegations. Respondent failed to submit a response to these proceedings. Therefore, the Panel may assume Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel will inspect the record and determine whether Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Respondent’s <advantahome.net> domain name resolves to a parked website which displays links to mortgage products and services which compete with Complainant’s business. Respondent presumably receives payment for displaying these links. The Panel finds this diversionary use of the disputed domain name is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Lockheed Martin Corp. v. Extraordinary Things LLC, FA 1117826 (Nat. Arb. Forum Jan. 23, 2008) (“Respondent’s…domain names all resolve to parked websites featuring links to third-party venture capital and financial websites that offer services in competition with Complainant, and Respondent accrues click-through fees from these links. The Panel finds that such use does not constitute either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Hoffmann-La Roche Inc. v. Truskowski, FA 808287 (Nat. Arb. Forum Nov. 14, 2006) (“[T]he operation of a ‘parking page’ in connection with the disputed domain name does not constitute a bona fide offering of goods or services as contemplated by [UDRP] Policy ¶ 4(c)[i] or a legitimate noncommercial or fair use as contemplated by [UDRP] Policy ¶ 4(c)[iii].”). Also, Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the <advantahome.net> domain name. The WHOIS information indicates Respondent’s name is “Andrew Miller.” The record indicates Complainant has never authorized Respondent to use its ADVANTA mark. Therefore, the Panel finds Respondent is not commonly known by the <advantahome.net> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). The Panel finds Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent’s disputed domain name resolves to a parked website which displays links to mortgage products and services, which directly compete with Complainant’s business. The Panel finds Respondent’s use constitutes disruption and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”). Respondent presumably receives payment for displaying links to Complainant’s competitors on the parked website which resolves from the confusingly similar <advantahome.net> domain name. Thus, the Panel finds Respondent is attempting to profit from the goodwill associated with Complainant’s mark, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). The Panel finds Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <advantahome.net> domain name be TRANSFERRED from Respondent to Complainant. Honorable Karl V. Fink (Ret.), Panelist Dated: March 24, 2008 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.