Go2trafficschool.com

The timeline behind go2trafficschool.com

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 Naim Interactive Inc. v. Jenks Presley Claim Number: FA0805001195371 PARTIES Complainant is Naim Interactive Inc., California, USA. (“Complainant”). Respondent is Jenks Presley (“Respondent”), California, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <go2trafficschool.com>, registered with Godaddy.com, Inc. 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. Louis E. Condon as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on May 27, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 30, 2008. On May 28, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <go2trafficschool.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 June 10, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 30, 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@go2trafficschool.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On July 8, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <go2trafficschool.com> domain name is confusingly similar to Complainant’s GOTOTRAFFICSCHOOL.COM mark. 2. Respondent does not have any rights or legitimate interests in the <go2trafficschool.com> domain name. 3. Respondent registered and used the <go2trafficschool.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Naim Interactive Inc., provides online traffic school courses through the <gototrafficschool.com> domain name. Complainant is one of the largest companies of its kind with millions of dollars in revenue. Complainant began using the GOTOTRAFFICSCHOOL.COM mark in connection with its business on October 25, 2000. Additionally, Complainant provides services in sixteen states to over 1,000,000 students. Respondent registered the disputed domain name on November 9, 2003. The <go2trafficschool.com> domain name currently resolves to a third-party links page in direct competition with Complainant. 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 alleges common law rights in the GOTOTRAFFICSCHOOL.COM mark. The Policy does not require a complainant to hold a trademark registration in a mark to establish rights under Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”). However, Complainant must establish that the asserted mark has developed secondary meaning to confer common law rights. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also S.A. Bendheim Co., Inc. v. Hollander Glass, FA 142318 (Nat. Arb. Forum Mar. 13, 2003) (holding that the complainant established rights in the descriptive RESTORATION GLASS mark through proof of secondary meaning associated with the mark). Complainant alleges that the mark has been used continuously in commerce since 2000. The website that Complainant’s mark directs to has had over 1,000,000 visitors from sixteen states. The Panel finds that the evidence meets the minimum threshold of proof of secondary meaning under Policy ¶ 4(a)(i). See BroadcastAmerica.com, Inc. v. Quo, DTV2000-0001 (WIPO Oct. 4, 2000) (finding that the complainant has common law rights in BROADCASTAMERICA.COM, given extensive use of that mark to identify the complainant as the source of broadcast services over the Internet, and evidence that there is wide recognition with the BROADCASTAMERICA.COM mark among Internet users as to the source of broadcast services); see also Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (finding that the complainant had provided evidence that it had valuable goodwill in the <minorleaguebaseball.com> domain name, establishing common law rights in the MINOR LEAGUE BASEBALL mark). Respondent’s disputed domain name contains Complainant’s entire mark in meaning and in essence. The only change made was to change the word “to” into the numerical equivalent “2.” Complainant contends that this change does not sufficiently differentiate the disputed domain name from Complainant’s mark. The Panel finds that Respondent’s disputed domain name is confusingly similar to the GOTOTRAFFICSCHOOL.COM mark in which Complainant has rights pursuant Policy ¶ 4(a)(i). See Am. Online Inc. v. Chinese ICQ Network, D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in the domain name <4icq.com> does nothing to deflect the impact on the viewer of the mark ICQ and is therefore confusingly similar); see also Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that the respondent’s domain name <go2AOL.com> was confusingly similar to the complainant’s AOL mark). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant claims that Respondent has neither rights nor legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Complainant has the initial burden of showing that Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case showing that Respondent lacks rights and legitimate interests, the burden shifts to Respondent to show that it does have rights or legitimate interests in the <go2trafficschool.com> domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). Not withstanding Respondent’s silence in this matter, the Panel will examine the record to determine if Complainant has sufficiently met its burden. Complainant asserts that Respondent has never been authorized to use the GOTOTRAFFICSCHOOL.COM mark, and that Respondent is not and has never been commonly known by the disputed domain name. Further, the WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not commonly known by the <go2trafficschool.com> 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 Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark). Respondent is using the <go2trafficschool.com> domain name to advertise links to third-party competitors. The Panel finds that such use is not 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 DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services). The Panel finds that Complainant has met the initial burden of showing that Respondent lacks rights and legitimate interests, and therefore has made a prima facie case under Policy ¶ 4(a)(ii). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith The Panel finds that Respondent’s use of the <go2trafficschool.com> domain name to commercially gain by advertising links to competing services constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See 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).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). Complainant contends that Respondent is using the <go2trafficschool.com> domain name for commercial gain by advertising links to competing services, and benefiting from the likely confusion between Complainant’s mark and the disputed domain name. The Panel finds that the similarity between the disputed domain name and the GOTOTRAFFICSCHOOL.COM mark are likely to create confusion as to Complainant’s source, sponsorship, affiliation, or endorsement of the website that resolves from the disputed domain name which constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED. Accordingly, it is Ordered that the <go2trafficschool.com> domain name be TRANSFERRED from Respondent to Complainant. Louis E. Condon, Panelist Dated: July 22, 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.