Paragraph 15 of the Rules states that the Panel shall decide a 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 deemed applicable.
In the case of default by a Party, Rule 14 states that if a Party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under the Rules, the Panel shall draw such inferences therefrom as appropriate.
In this case the Respondent has not submitted any Response and consequently has not contested any of the contentions made by the Complainant. The Panel is therefore obliged to make its decision on the basis of the factual statements contained in the Complaint and the documents made available by the Complainant to support its contentions.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following for a panel to order a transfer of the domain name(s) at issue:
(i) the domain name registered by the respondent is identical or confusingly similar to a trade mark or service mark in which Complainant has rights; and
(ii) the respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Taking each of these issues in turn, the Panel decides as follows:
A. Identical or Confusingly Similar
Based on the evidence put forward by the Complainant, the Panel finds that the Complainant has trade mark rights in the term ALAMO.
The Panel notes that all the disputed domain names incorporate the Complainant's ALAMO trade mark in its entirety. It is widely accepted that the generic Top Level Domain suffix is generally irrelevant for the purpose of assessing identity or confusing similarity between a trade mark and a domain name.
On the basis of these considerations, the Panel finds that the disputed domain names are identical to a trade mark in which the Complainant has rights, in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain names (Policy, paragraph 4(a)(ii)).
Paragraph 4(c) of the Policy sets out various ways in which a respondent may demonstrate rights or legitimate interests in the domain name(s) at issue, as follows:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trade mark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue."
The Panel has considered the evidence put forward by the Complainant and is of the view that the Complainant has presented a clear prima facie showing of the Respondent's lack of rights or legitimate interests in the disputed domain names. As a result of its default, the Respondent has failed to rebut that showing.
The Respondent cannot be considered to be making a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy referred to above, given that the disputed domain names are pointing to websites containing sponsored links. Neither can such use be said to be a legitimate non-commercial or fair use of the domain names within the meaning of paragraph 4(c)(iii). Furthermore, no evidence has been supplied that the Respondent is commonly known by the disputed domain names, as referred to at paragraph 4(c)(ii).
Given the above, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names and that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
The third element that the Complainant must prove is that the disputed domain names have been registered and are being used in bad faith (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy sets out various circumstances which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith, as follows:
"For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
The Panel is satisfied that the Respondent’s conduct falls within paragraph 4(b)(iv) of the Policy. By using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its website, by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website.
In addition, given the Complainant's notoriety, the fact that its trade marks significantly pre-date the registration of the domain names, and the content of the websites to which the domain names are pointing, it is clear that the Respondent registered the domain names in bad faith.
The Panel therefore finds that the disputed domain names have been registered and are being used in bad faith and that paragraph 4(a)(iii) of the Policy is satisfied.
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