DECISION

Alltel Communications v P.W. Martin Foundation a/k/a Autoresponse Lite Leveraged Telecommunications League

Claim Number: FA0106000097756

PARTIES

The Complainant is Alltel Communications, Little Rock, AR, USA (“Complainant”) represented by Andrew J. Simons, of Sutin, Thayer & Browne.  The Respondent is P.W. Martin Foundation a/k/a Autoresponse Lite Leveraged Telecommunications League, Haines City, FL, USA (“Respondent”) represented by Stephen Sturgeon.

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <altell.com>, <altell.net>, and <alltell.net>, registered with Tucows 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.

Judge Irving H. Perluss (Retired) is the Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (“the Forum”) electronically on June 28, 2001; the Forum received a hard copy of the Complaint on July 2, 2001.

On July 3, 2001, Tucows Inc. confirmed by e-mail to the Forum that the domain names <altell.com>, <altell.net>, and <alltell.net> are registered with Tucows Inc. and that the Respondent is the current registrant of the name.  Tucows Inc. has verified that Respondent is bound by the Tucows 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 July 5, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 25, 2001 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@altell.com, postmaster@altell.net, and postmaster@alltell.net by e-mail.

A timely response was received and determined to be complete on July 25, 2001.

Complainant made a timely additional submission, which was considered by the Panelist.

On August 2, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Irving H. Perluss (Retired) as Panelist.

RELIEF SOUGHT

The Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

            1.         Complainant has the right to use the name and service mark “Alltel” which was registered with the United States Patent and Trademark Office on February 26, 1985, by Complainant’s parent corporation.

            2.         The disputed domain names are virtually identical and confusingly similar to the mark and name used by Complainant.

            3.         Respondent does not have a legitimate interest or rights to the disputed domain names.  Respondent is not known or associated with the domain names, which do not describe Respondent’s services or products, but are used only to commercially profit from Complainant’s name through inadvertent misspellings by innocent consumers.

            4.         Respondent registered and is using the disputed domain names in bad faith.  The disputed domain names are utilized as pass-through links to Respondent’s other website which in turn links to graphic pornographic materials, wherein consumers from Complainant’s website are diverted for profit.  There is a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website.

B. Respondent

            1.         There is no definitive proof that the rights to the service mark and name have been assigned to Complainant.

            2.         Respondent does have a legitimate interest and rights to the disputed domain names.  Respondent has made demonstrable preparations since July 22, 1999, to use the names in connection with a bona fide offering of goods and services.

            3.         There has been no evidence presented by Complainant which establishes that Respondent registered and is using the disputed domain names in bad faith, and, in fact, it did and is not.

C. Additional Submission by Complainant

            1.         Complainant has had and has full rights to the Alltel name and service mark, and is using the mark “alltel.com” as a domain name providing information and services related to Complainant’s business.

            2.         The disputed domain names are confusingly similar to the Alltel name and mark.

            3.         Respondent has no legitimate interest in the disputed domain names.  While Respondent claims it has been developing a business for the provision of Christian materials and for the ministration for the spiritual needs of potential clients, in fact, until a few weeks ago, the disputed domain names were used as direct pass-through links to a sexually explicit website.

            4.         The showing of personal bad faith is not required by the Policy.  Rather, the objective facts establishing that Respondent has attempted to use the names to confuse and/or divert consumers is what is required.

DISCUSSION, FINDINGS AND DETERMINATIONS

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

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;

(2) the 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.

The Panelist finds and determines that Complainant has the right to use the name and service mark “Alltel,” which was registered with the United States patent and Trademark Office on February 26, 1985, by Complainant’s parent corporation, Alltel Corporation.

The Panelist further finds and determines that the disputed domain names, <altell.com>, <altell.net>, and <alltell.net>, are virtually identical and thus confusingly similar to the mark and name used by Complainant, as well as Complainant’s domain names <alltel.com> and <alltel.net>.  The disputed domain names have the same pronunciation as Complainant’s domain names and differ from Complainant’s domain names by only one or two letters.[1]

It is found and determined that the disputed domain names were being used as a portal to site <atlantic.net/~rgb/index.html>, which contains links to graphic and adult-oriented material, although the linkage now is to a “Christian site.”[2]

It is found and determined that the disputed domain names do not signify, describe or identify Respondent’s services or products, but serve only to allow Respondent to commercially profit from Complainant’s name through inadvertent misspellings by consumers.[3]

It is found and determined that Respondent registered and used the three disputed domain names in bad faith because Respondent has sought commercial gain from the deliberate registration and misuse of the disputed domain names.  They are the common misspellings of a well-known company name.  Respondent’s sole purpose is to use the domain names as pass-through links to Respondent’s other website <atlantic.net~rgb/index.html>, which does contain links to graphic and adult-oriented material, although the pass-through now is to a “Christian site.”[4]

Finally, it is found and determined that there is sufficient evidence of registration and use of the disputed domain names in bad faith as indicated in Paragraph 4(b)(iv) of the Policy.  This is because Respondent has created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website.  A user is led to believe that Complainant sponsors or is affiliated with Respondent’s domain name, and is one and the same (until after a user is linked to Respondent’s website and subject to its material).  It is apparent that Respondent benefits from users who landed on Respondent’s website, thinking they have made connection with Complainant.[5]

DECISION

Based on the above findings and determinations, it is decided that the domain names “altell.com,” “altell.net,” and “alltell.net” registered by P. W. Martin Foundation, a/k/a Autoresponse Lite Leveraged Telecommunications League shall be, and the same is, transferred to Alltel Communications.

JUDGE IRVING H. PERLUSS (Retired), Panelist

Dated: August 16, 2001

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