WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ameritrade Holding Corporation and Ameritrade (Inc.) v. Pangea Holdings Ltd.
Case No. D2000-0971
1. The Parties
1.1 The Complainants are Ameritrade Holding Corporation, a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 4211 South 102nd Street, Omaha, Nebraska, United States of America, and Ameritrade (Inc.), a wholly owned subsidiary of Ameritrade Holding Corporation and a corporation organized and existing under the laws of the State of Nebraska, having its principal place of business at 1005 N. Ameritrade Pl., Bellevue, Nebraska, United States of America. Complainants may hereafter be jointly and severally referred to as "Complainant," except where a particular Complainant is specifically identified.
1.2 The Respondent is Pangea Holdings Ltd., an entity giving an address at 2275 Bravender Rd., Williamson, Michigan, United States of America.
2. The Domain Name(s) and Registrar(s)
The domain name at issue is <ameritrad.com>, which domain name is registered with Network Solutions, Inc., based in Herndon, Virginia, United States of America.
3. Procedural History
3.1 A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on August 8, 2000, and the signed original together with four copies was received on August 9, 2000. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant, dated August 11, 2000.
3.2 On August 15, 2000, a Request for Registrar Verification was transmitted to the registrar, Network Solutions, Inc. ("NSI") requesting it to: (1) confirm that the domain name at in issue is registered with NSI; (2) confirm that the person identified as the Respondent is the current registrant of the domain name; (3) provide the full contact details (i.e., postal address(es), telephone number(s), facsimile number(s), e-mail address(es)) available in the registrar’s Whois database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact; (4) confirm that the Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5) indicate the current status of the domain name.
3.3 On August 17, 2000, NSI confirmed by reply e-mail that the domain name is registered with NSI, that it is currently in active status, and that the Respondent is the current registrant of the name. The registrar also forwarded the requested Whois details and confirmed that the Policy is in effect.
3.4 The WIPO Center determined that the Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a sole Panelist were paid on time and in the required amount by the Complainant.
3.5 No formal deficiencies having been recorded, on August 21, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI, and ICANN), setting a deadline of September 9, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI’s confirmation. In addition, the complaint was sent by express courier to the postal address given. Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent."
3.6 On September 12, 2000, not having received any response, the WIPO Center sent the parties a formal Notification of Respondent Default.
3.7 On September 27, 2000, Complainant submitted to the WIPO Center an Amendment to the Complaint by email and facsimile, and the WIPO Center sent its Acknowledgement of receipt of the communication.
3.8 On October 11, 2000, in view of the Complainant's designation of a single Panelist, the WIPO Center appointed M. Scott Donahey to serve as sole Panelist.
4. Factual Background
4.1 Complainant registered the service mark "Ameritrade" in connection with securities brokerage services with the United States Patent Office ("USPTO") on January 21, 1997, the registration showing a first use in commerce on March 30, 1981.
4.2 Complainant recorded in fiscal 1999 revenues of US$268.4 million in its core discount brokerage accounts.
4.3 Complainant offers trading on stocks, mutual funds, options and bonds primarily via the Internet at its web site, www.ameritrade.com.
4.4 On December 16, 1998, Respondent registered the domain name <ameritrad.com>.
4.5 Respondent has used the domain name to resolve to a web site labeled "IndexTrade.com." IndexTrade.com describes itself as the recognized leader in online Index Trading. The founders of the entity are described as professional traders.
4.6 Respondent offers high risk, gambling type investments described as "financial wagering," which Respondent distinguishes from trading in index options, futures, or other activities of a broker dealer.
4.7 Complainant has not licensed Respondent or otherwise consented to Respondent's use of Complainant's mark.
5. Parties’ Contentions
5.1 Complainant contends that Respondent has registered as a domain name a mark which is confusingly similar to the service mark registered and used by Complainant, that Respondent has no rights or legitimate interests in respect of the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.
5.2 Respondent has not contested the allegations of the Complaint.
6. Discussion and Findings
6.1 Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall 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."
6.2 Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.
6.3 Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
1) that 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) that the Respondent has no legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and is being used in bad faith.
6.4 The domain name at issue is either identical (Hewlett-Packard Company v. Cupcake City, ICANN Case No. FA00020000093562; America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., ICANN Case No. FA00020000093679) or confusingly similar (Mariott International, Inc. v. John Marriot, ICANN Case No. FA94737) to Complainant's mark.
6.5 Complainant has alleged and Respondent has failed to deny that Respondent has no legitimate interests in respect of the domain name at issue. Alcoholics Anonymous World Services, Inc. v. Raymond, WIPO Case No. D2000-007; Bronson Plc v. Unimetal Sanayai ve Tic. A.S., WIPO Case No. D2000-0011.
6.6 Respondent has used the name to resolve to a web site at which "investment" services in the nature of gambling are offered. The panel finds that Respondent has used the domain name at issue to intentionally attract Internet users to Respondent's site for commercial gain by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or the service offered at the web site. This constitutes bad faith registration and use under the Policy. Policy, ¶ 4(b)(iv).
For all of the foregoing reasons, the Panel decides that the domain name registered by Respondent is identical or confusingly similar to the service mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domain name at issue, and that the Respondent's domain name has been registered and is being used in bad faith. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name <ameritrad.com> be transferred to the Complainant Ameritrade Holding Corporation.
M. Scott Donahey
Dated: October 23, 2000