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HighReach Learning, Inc. v. Asia Ventures, Inc. [2005] GENDND 1476 (3 August 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

HighReach Learning, Inc. v. Asia Ventures, Inc.

Case No. D2005-0628

1. The Parties

The Complainant is HighReach Learning, Inc., Sandra M. Duncan, Charlotte, North Carolina, United States of America, represented by Stephen T Carson, United States of America.

The Respondent is Asia Ventures, Inc., Central Hong Kong, SAR of China.

2. The Domain Name and Registrar

The disputed domain name <highreachlearning.com> is registered with The Registry at Info Avenue d/b/a IA Registry.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2005, by hard copy and on June 22, 2005 by e-mail. On June 16, 2005, the Center transmitted by email to The Registry at Info Avenue d/b/a IA Registry a request for registrar verification in connection with the domain name at issue. On June 17, 2005, The Registry at Info Avenue d/b/a IA Registry transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 24, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was July 14, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 18, 2005.

The Center appointed José Mota Maia as the Sole Panelist in this matter on July 25, 2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The Complainant is HighReach Learning Inc., located in Charlotte, North Carolina, United States of America. The Complainant has traded under the name HighReach Learning since 1986, producing curriculum programs and materials for children. The Complainant serves customers in all 50 States in the United States of America, as well as customers in Canada, Germany, Mexico, Italy, Taiwan, Japan, and the Virgin Islands.

The Complainant operates a website with the domain name <highreach.com>, where it provides customers with information regarding its products and services, and allows customers to order such products and services online.

The Complainant is the proprietor of the trademark registrations No. 1,828,862 “HIGHREACH LEARNING” and 1,836,631 “HIGHREACH LEARNING” in the United States of America, the earliest of which dates back to March 1994.

The Respondent is Asia Ventures, Inc. of Hong Kong, SAR of China. It registered the domain name on January 14, 2002.

The Respondent operates a website connected to the domain name which links to various other sites.

5. Parties’ Contentions

A. Complainant

The Respondent registered and is using a domain name that is identical to Complainant’s trade name and marks.

The domain name is confusing and misleading with regard to those persons who have an imperfect recollection of the Complainant’s website and to those persons searching out the Complainant based on their knowledge of the mark.

The Respondent has no rights or legitimate interests in respect of the domain name. The Respondent does not provide a bona fide service in connection with the website connected to the domain name.

The Respondent’s website is merely a link to other sites, and the Respondent is likely to derive revenue from visitors to its site using those links.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the domain name, the Complainant must prove that each of the three following elements is satisfied:

1. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.A);

2. The Respondent has no rights or legitimate interests in respect of the domain name (see below, section 6.B); and

3. The domain name has been registered and is being used in bad faith (see below, section 6.C).

Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.

Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the 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 that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate.

A. Identical or Confusingly Similar

The domain name <highreachlearning.com> is identical to the Complainant’s trademarks “HIGHREACH LEARNING”.

Accordingly, the Panel finds that the domain name is confusingly similar to the trademarks in which the Complainant has rights.

B. Rights or Legitimate Interests

The Respondent is named Asia Ventures, Inc. It is not named HighReach Learning or any similar name. Although the Respondent provides a service by reference to the domain name, is it a bona fide service?

The Panel accepts the Complainant’s uncontroverted evidence to the effect that the Respondent’s website is merely a link to other sites.

In the absence of any Response from the Respondent, the Panel believes that the Respondent deliberately selected the domain name with a view to attracting visitors to its site, anticipating that it would attract visitors intending to reach the Complainant’s site.

According to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:

“(i) Before any notice to you [Respondent] 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 [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) You [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

There were no elements introduced in evidence to show that the Respondent is or was commonly known by the domain name. There is no evidence that the Respondent is making a legitimate noncommercial or fair use of the domain name.

Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances that, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:

(i) Circumstances indicating that Respondent has registered or 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 trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) By using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s 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 Respondent’s website or location or of a product.

There is evidence of the situation described in paragraph 4(b)(iv) and some evidence of a pattern as contemplated in paragraph 4(b)(ii).

The Respondent registered the domain name in bad faith. It is reasonable to conclude that only someone who was familiar with the Complainant’s mark would have registered the identical domain name.

As to paragraph 4(b)(i), although it is questionable whether the Respondent registered the domain name solely for the purpose of selling it to the Complainant, the Respondent is known to have registered in the past the domain names that correspond to well-known marks. The Panel does not express an opinion as to whether this ground alone would be sufficient for a finding of bad faith in this case but notes that it clearly reinforces the already mentioned elements of bad faith. See Museum of Science v. Asia Ventures, Inc. WIPO Case No. D2003-0691.

The Panel concludes that the Respondent registered the domain name and is using it in bad faith within the meaning of paragraphs 4(b)(ii) and 4(a)(iv) of the Policy.

7. Decision

For all the foregoing reasons, namely that the domain name is confusingly similar to a trademark in which the Complainant has rights and that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name was registered and is being used in bad faith, the Complaint succeeds and, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <highreachlearning.com>, be transferred to the Complainant.

José Mota Maia
Sole Panelist

Dated: August 3, 2005