The Complainant is Ancestry.com Operations Inc. of Provo, Utah, United States of America (“USA”), represented by Fillmore Spencer, LLC, USA.
The Respondent is Bladimir Boyiko of Moscow, Russian Federation.
The disputed domain name <wwwancestry.com> (the “Domain Name”) is registered with eNom (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2009.
The Center transmitted its request for registrar verification to the Registrar on August 6, 2009. The Registrar replied the same day, stating that the Domain Name had been placed under a locked status to prevent any transfers or changes to the registration information during the proceedings; that its registration agreement is in English and requires the registrant to consent to the jurisdiction of the courts in King County, Washington; and that contact information for the Domain Name could be found by a WhoIs lookup at “http://whois.enom.com”. The Registrar also provided the contact details for the registrant.
The Center verified that the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 14, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 3, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 4, 2009.
The Center appointed Jonathan Turner as the sole panelist in this matter on September 8, 2009. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
Having reviewed the file, the Panel finds that the Complaint complied with applicable formal requirements, was duly notified to the Respondent, and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
The Complainant provides the world's leading online collection of family history resources through a website at “www.ancestry.com” and offers genealogical research services under the mark ANCESTRY. It has over 4 billion historical records and nearly 1 million subscribers. It commenced its use of the mark ANCESTRY for genealogical services in 1983 and its use of the website at “www.ancestry.com” in 1997.
The Complainant has registered ANCESTRY as a trademark in the USA, European Union and Australia and ANCESTRY.COM as a trademark in the USA. It registered the domain name <ancestry.com> in 1995 and has registered other domain names containing ANCESTRY as the second level domain with various different top level domains at various dates since then.
The Respondent registered the Domain Name in 2000 and is using it for a website which displays links to websites of the Complainant's competitors. The Complainant sent a cease and desist letter to the Respondent on May 20, 2009, to which the Respondent did not reply.
The Complainant contends that it has registered and common law rights in the marks ANCESTRY and ANCESTRY.COM and that the Domain Name is confusingly similar to these marks.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name, pointing out that its use of the marks ANCESTRY and ANCESTRY.COM predated the registration of the Domain Name.
Finally, the Complainant alleges that the Domain Name was registered and is being used in bad faith. The Complainant states that the Respondent is a “typosquatter” and that its use of the Domain Name can only have been an intentional attempt to attract Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website or products or services on it. The Complainant also relies on the Respondent's failure to reply to its cease and desist letter as further evidence of bad faith.
The Complainant requests a decision that the Domain Name be transferred to it and the Respondent be barred from registering any other domain name containing ANCESTRY.COM.
As stated above, the Respondent did not reply to the Complainant's contentions.
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
On the evidence, the Panel finds that the Complainant has registered and unregistered rights in the marks ANCESTRY and ANCESTRY.COM.
The Panel further finds that the Domain Name is confusingly similar to these marks and in regards to the ANCESTRY mark, which it incorporates in their entirety. An Internet user seeking the Complainant's website at “www.ancestry.com” might well mistype the locator as <wwwancestry.com> and thereby land on the Respondent's website.
The first requirement of the Policy is satisfied.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Panel does not regard the Respondent's use of the Domain Name for a website displaying links, apparently generated by an automated Google search, as being in connection with a bona fide offering of goods or services. In the Panel's view the Respondent is not providing any real service in connection with the Domain Name. Furthermore, the use is not bona fide, but rather is carried on in bad faith in order to profit through click-through commissions from the diversion of Internet users through confusion with the Complainant's well-established mark.
The Respondent is not commonly known by the Domain Name and has not made legitimate non-commercial or fair use of the Domain Name without intent to divert consumers for commercial gain.
On the evidence, there is no other basis on which the Respondent could claim rights or legitimate interests in respect of the Domain Name. The second requirement of the Policy is satisfied.
The Panel finds on the undisputed evidence that, by its use of the Domain Name, the Respondent has intentionally attempted to attract Internet users to its website, for commercial gain in the form of click-through commissions, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website.
In accordance with paragraph 4(b)(iv) of the Policy, this constitutes evidence of registration and use of the Domain Name in bad faith. This presumption is not displaced by any other evidence on the file. In particular, the Panel is satisfied that the Complainant's marks were well established before the Respondent registered and commenced its use of the Domain Name for a website displaying links to the Complainant's competitors. In these circumstances, there is no reason to doubt the inference that the Domain Name was registered in bad faith for the purpose of exploiting the reputation of the Complainant's mark.
The Panel concludes that the Domain Name was registered and is being used in bad faith. The third requirement of the Policy is satisfied.
In accordance with paragraph 4(i) of the Policy, the remedies available to the Complainant in this proceeding are limited to requiring cancellation of the Domain name or its transfer to the Complainant. The Complainant has requested transfer of the Domain Name and it is appropriate to grant this remedy. The Panel has no jurisdiction to grant the further remedy sought by the Complainant of barring the Respondent from registering any other domain name containing ANCESTRY.COM.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <wwwancestry.com>, be transferred to the Complainant.
Dated: September 22, 2009