Sports Holdings, Inc. v. I love china
Claim Number: FA0707001048619
Complainant is Sports Holdings, Inc. (“Complainant”), represented by David
Benck, 3763 Howard Hughes Parkway, Suite 170A, Las Vegas, NV 89169. Respondent is I love china (“Respondent”), ChongQingChina, chongqingshi,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hibbetsport.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
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 Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 30, 2007 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@hibbetsport.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <hibbetsport.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark.
2. Respondent does not have any rights or legitimate interests in the <hibbetsport.com> domain name.
3. Respondent registered and used the <hibbetsport.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has been continuously using the HIBBETT SPORTS
trademark in connection with the operation of sporting goods stores since 1994. Complainant also operates its official
corporate website using the <hibbett.com> domain name. Complainant owns a
trademark registration with the United States Patent and Trademark Office (“USPTO”)
for the HIBBETT SPORTS mark (Reg. No. 2,717,584 issued
Respondent’s <hibbetsport.com>
domain name was registered on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant has sufficiently established its rights in the
HIBBETT SPORTS mark pursuant to Policy ¶ 4(a)(i) through registration of the
mark with the USPTO. See
Respondent’s <hibbetsport.com>
domain name omits the space between the words and the last letters “t” and “s”
from the words HIBBETT and SPORTS of Complainant’s mark. The disputed domain name also includes a
generic top-level domain. It is well
established that omitted spaces and top level domain names are disregarded in a
Policy ¶ 4(a)(i) analysis. See
Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25,
2000) (finding that the domain name <croatiaairlines.com>
is identical to the complainant's CROATIA AIRLINES trademark); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25,
2000) (finding that the top level of the domain name such as “.net” or “.com”
does not affect the domain name for the purpose of determining whether it is
identical or confusingly similar). Moreover, a generic typo, which includes the
omission of letters from a word in a mark, leads to the finding that the
disputed domain name is confusingly similar to Complainant’s mark. See State Farm Mut. Auto. Ins. Co. v. Try
Harder &
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must initially make out
a prima facie case that Respondent
has no rights or legitimate interests in the domain name at issue. See
VeriSign Inc. Vene Sign,
Respondent has failed to submit a response to the Complaint. The Panel thus presumes that Respondent has no rights or legitimate interests in the <hibbetsport.com> domain name, but will still consider all available evidence with respect to the factors listed in Policy ¶ 4(c) before making this determination. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).
Nowhere in Respondent’s WHOIS information does it indicate that Respondent is commonly known by the <hibbetsport.com> domain name. There is also no other information in the record to indicate that Respondent is or ever has been known by the disputed domain name. Further, Respondent has not sought, nor has Complainant granted, a license or permission to use Complainant’s mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent does not have a business or offer any services
from the website that resolves from the disputed domain name. The <hibbetsport.com>
domain name is being used as a commercial search engine and features links to
competing sporting goods stores and third-parties which offer services and
products that are similar to those offered under Complainant’s HIBBETT SPORTS
mark. These links presumably provide
Respondent compensation. Accordingly, the
Panel finds that this is further evidence that Respondent has no rights or legitimate
interests in the disputed domain name because it is not using the disputed
domain name in connection with a bona
fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a
noncommercial or fair way pursuant to Policy ¶ 4(c)(iii). See 24 Hour Fitness USA, Inc. v.
24HourNames.com-Quality Domains For
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The disputed domain name resolves to a website that features
links to competing sporting goods stores and third-parties which offer services
and products that are similar to those offered under Complainant’s HIBBETT
SPORTS mark. This is presumed to disrupt
Complainant’s business. The Panel finds
that Respondent registered and is using the <hibbetsport.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See Tribeca
Film Ctr., Inc. v. Brusasco-Mackenzie, D2000-1772 (WIPO Apr. 10, 2001) (rejecting the Mission
KwaSizabantu approach and holding that “a respondent can ‘disrupt the
business of a competitor’ only if it offers goods or services that can compete
with or rival the goods or services offered by the trademark owner”); see also EthnicGrocer.com, Inc. v.
Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith
where the respondent’s sites pass users through to the respondent’s competing
business); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO
Dec. 15, 2000) (finding that the respondent registered and used the domain name
<eebay.com> in bad faith where the respondent has used the domain name to
promote competing auction sites).
Respondent’s <hibbetsport.com> domain name also displays a commercial search engine along with links to direct competitors of Complainant. It is presumed that such links commercially benefit Respondent through the accrual of click through fees. The Panel finds this to be additional evidence of Respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hibbetsport.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: September 17, 2007
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