DECISION

Vcampus Corporation f/k/a UOL Publishing, Inc. v. Ginny Sissbaro

Claim Number: FA0411000373583

PARTIES

Complainant is Vcampus Corporation f/k/a UOL Publishing, Inc. (“Complainant”), represented by Joseph H. Nanney, of Wyrick Robbins Yates & Ponton LLP, P.O. Drawer 17803, Raleigh, NC 27619.  Respondent is Ginny Sissbaro (“Respondent”), 4725 W. Quincy Ave., Denver, CO 80236.

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <vcampus.us>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Sandra Franklin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 30, 2004; the Forum received a hard copy of the Complaint on December 1, 2004.

On December 1, 2004, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the Forum that the domain name <vcampus.us> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name.  Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).

On December 8, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 28, 2004 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On January 5, 2005, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the Rules, the 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 <vcampus.us> domain name is identical to Complainant’s VCAMPUS marks.

2. Respondent does not have any rights or legitimate interests in the <vcampus.us> domain name.

3. Respondent registered and/or used the <vcampus.us> domain name in bad faith.

B. Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant provides online education services, specifically conducting online classes and seminars at the college and postgraduate level for technical, computer and general business training.

Complainant registered the VCAMPUS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,286,053 issued October 12, 1999).

Respondent registered the <vcampus.us> domain name on June 12, 2002.  Respondent’s domain name resolves to a website offering competing online education services.

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 the Complainant's undisputed representations pursuant to Paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to Paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered or is being used in bad faith.

Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.

Identical and/or Confusingly Similar

Complainant has established rights in the VCAMPUS mark through registration with the USPTO.  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 and have acquired secondary meaning.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption.

Respondent’s <vcampus.us> domain name is identical to Complainant’s VCAMPUS mark but for the addition of the country-code top-level domain “.us.”  Such addition is not enough to distinguish Respondent’s domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to Complainant’s TROPAR mark; see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied. 

Rights or Legitimate Interests

Respondent has failed to respond to the Complaint.  Therefore, the Panel accepts all reasonable allegations set forth in the Complaint as true.  See Am. Online, Inc. v. Clowers, FA 199821 (Nat. Arb. Forum Nov. 14, 2003) finding that the failure to challenge a complainant’s allegations allows a panel to accept all of complainant’s reasonable allegations and inferences as true; see also Wells Fargo & Co. v. Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) finding that the failure to respond to a complaint allows a panel to make reasonable inferences in favor of a complainant and accept complainant’s allegations as true.

In addition, the Panel construes Respondent’s failure to respond as an admission that Respondent lacks rights and legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names; see also Honeywell Int’l Inc. v. Domain Deluxe, FA 269166 (Nat. Arb. Forum June 29, 2004) (“The failure of Respondent to respond to the Complaint functions both as an implicit admission that Respondent lacks rights to and legitimate interests in the domain names, as well as a presumption that Complainant’s reasonable allegations are true.”).

Respondent was not authorized or licensed by Complainant to register or use a domain name that incorporates the VCAMPUS mark.  Nothing in the record shows that Respondent holds a trademark pursuant to Policy ¶ 4(c)(i) or is commonly known by the <vcampus.us> domain name pursuant to Policy ¶ 4(c)(iii).  Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the domain name pursuant to Policy ¶ 4(c)(i) and (iii).  See Tercent Inc. v. 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 UDRP ¶ 4(c)(iii) does not apply; see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the mark precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question. 

Moreover, Respondent has used the <vcampus.us> domain name to direct Internet users to a competing educational services website.  Such competing use of a domain name identical to Complainant’s VCAMPUS mark is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iv).  See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (“[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the Complainant’s mark and for the same business.”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that Respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with Complainant, was not a bona fide offering of goods or services).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by registering a domain name that is identical to Complainant’s mark and using it to market a competing educational services website.  See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) finding that the minor degree of variation from Complainant's marks suggests that Respondent, Complainant’s competitor, registered the names primarily for the purpose of disrupting Complainant's business; see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business.

Furthermore, Respondent is capitalizing on the goodwill of the VCAMPUS mark by using the disputed domain name to divert Internet users to a website offering competing commercial services.  Since the disputed domain name contains an identical version of Complainant’s mark, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting website.  In addition, the Panel infers that Respondent receives click-through fees for redirecting Internet users to this competing website.  Therefore, Respondent’s opportunistic use of the disputed domain name represents bad faith registration and use pursuant to UDRP ¶ 4(b)(iv).  See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to UDRP ¶ 4(b)(iv); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain.

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <vcampus.us> domain name be TRANSFERRED from Respondent to Complainant

Sandra Franklin, Panelist

Dated: January 19, 2005

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