Baltimore Ravens Limited Partnership v. Jian Qing
Claim Number: FA1907001854399
Complainant is Baltimore Ravens Limited Partnership (“Complainant”), represented by Halle B. Markus of Venable LLP, Washington DC, USA. Respondent is Jian Qing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ravenshopfootballofficial.com>, registered with NameCheap, Inc..
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 29, 2019; the Forum received payment on July 29, 2019.
On July 29, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <ravenshopfootballofficial.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 31, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 20, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@ravenshopfootballofficial.com. Also on July 31, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 21, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the owner of the Baltimore Ravens Football Team, a National Football League (“NFL”) team and leading Baltimore sports organization. Complainant has rights in the RAVENS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,217,622, registered March 13, 2007). Respondent’s <ravenshopfootballofficial.com> domain name is confusingly similar to Complainant’s RAVENS mark. Respondent’s disputed domain name wholly incorporates Complainant’s RAVENS mark and adds the generic terms “shop,” “football,” and “official,” and attaches the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <ravenshopfootballofficial.com> domain name as Respondent is not commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or noncommercial or fair use. Instead, Respondent’s disputed domain name resolves to an e-commerce webpage claiming to be the “Baltimore Ravens Official Online Store.”
Respondent registered and used the <ravenshopfootballoffical.com> domain name in bad faith. Respondent attempts to divert Internet users from Complainant’s website to its website that offers identical goods and misrepresents an association with Complainant. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the RAVENS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <ravenshopfootballofficial.com> domain name.
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."
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of 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. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims to have rights in the RAVENS mark through its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Here, Complainant has provided the Panel with information pertaining to its RAVENS mark registered with the USPTO (e.g., Reg. No. 3,217,622, registered Mar. 13, 2007). The Panel finds that Complainant has adequately shown rights in the RAVENS mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <ravenshopfootballofficial.com> domain name is confusingly similar to Complainant’s RAVENS mark. Registration of a domain name that includes a complainant’s mark and adds generic terms and a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Here, Complainant argues that Respondent’s disputed domain name wholly incorporates Complainant’s RAVENS mark and adds the generic terms “shop,” “football,” and “official” in addition to the “.com” gTLD. The Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s RAVENS mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). Panel finds that Complainant has made a prima facie case.
Complainant argues Respondent lacks rights or legitimate interest in the <ravenshopfootballofficial.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the RAVENS mark or register domain names using Complainant’s mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Jian Qing” and there is no other evidence to suggest that Respondent was authorized to use the RAVENS mark or was commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to make a bona fide offering of goods or services or noncommercial or fair use. Instead, Respondent’s disputed domain name resolves to an ecommerce webpage claiming to be the “Baltimore Ravens Official Online Store.” Use of a disputed domain name to resolve to a webpage that offers counterfeit or unauthorized products is not a bona fide offering of goods or services or noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (“The respondent’s use of the disputed domain name to pass itself off as the complainant to advertise and sell unauthorized products of the complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant has provided the Panel with screenshots of Respondent’s domain name’s resolving webpage that shows Respondent offering Complainant’s products and mark. The Panel finds that Respondent has failed to make a bona fide offering of goods or services or noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant contends that Respondent’s registration and use of the <ravenshopfootballofficial.com> domain name is in bad faith, as Respondent’s sale of unauthorized or counterfeit products amounts to an attempt to confuse and attract Internet users and compete with Complainant. Use of a domain name to sell counterfeit goods can be evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See H-D U.S.A., LLC v. Linchunming / linchunming, FA1411001589214 (Forum Dec. 22, 2014) (“As mentioned above, Respondent uses the domain name to promote counterfeit goods like those offered by Complainant. Doing so disrupts Complainant’s business and demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iii).”); see also H-D Michigan, LLC v. Ross, FA 1250712 (Forum Apr. 23, 2009) (determining that the respondent’s selling of counterfeit products creates the likelihood of confusion as to the complainant’s affiliation with the disputed domain name and allows the respondent to profit from that confusion). The disputed domain resolves to a website featuring Complainant’s marks and offering for sale products Complainant contends are counterfeit. The Panel agrees with Complainant’s contentions and finds Respondent’s behavior demonstrates bad faith registration and use of the disputed domain pursuant to Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant argues that Respondent had actual or constructive knowledge of Complainant’s rights in the RAVENS mark prior to registration of the <ravenshopfootballofficial.com>. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name is adequate to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Use of a disputed domain name display a complainant’s mark in association with products they are associated with may be evidence of actual knowledge per Policy ¶ 4(a)(iii). See University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“. . .the Panel infers Respondent’s actual knowledge here based on Respondent’s complete use of the PERIFACTS mark in the <perifacts.com> domain name to promote links related to the field of obstetrics, where Complainant’s mark is used.”). Here, Complainant has provided screenshots of Respondent’s domain name’s resolving webpage that uses Complainant’s RAVENS mark and offers products associated with Complainant’s brand. The Panel finds that Respondent had actual knowledge of Complainant’s rights in the RAVENS mark prior to registration of the domain name, and this constitutes bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <ravenshopfootballofficial.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: August 25, 2019
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