Peter Jerie v. 1livescore c/o Mirtaza Adiguzel
Claim Number: FA0708001052625
Complainant is Peter Jerie (“Complainant”), represented by Sean F. Heneghan, 31 Reading Hill Avenue, Melrose, MA, 02176. Respondent is 1livescore c/o Mirtaza Adiguzel (“Respondent”), yeni mah, nergis sok, didim aydin 09270, TR.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <1livescore.com>, registered with Namesdirect.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically August 1, 2007; the National Arbitration Forum received a hard copy of the Complaint August 6, 2007.
On August 2, 2007, Namesdirect confirmed by e-mail to the National Arbitration Forum that the <1livescore.com> domain name is registered with Namesdirect and that Respondent is the current registrant of the name. Namesdirect verified that Respondent is bound by the Namesdirect registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 4, 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@1livescore.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
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. The domain name that Respondent registered, <1livescore.com>, is confusingly similar to Complainant’s LIVESCORE mark.
2. Respondent has no rights or legitimate interests in the <1livescore.com> domain name.
3. Respondent registered and used the <1livescore.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Peter Jerie, has used the LIVESCORE mark in connection with its business of providing real-time scores for sporting events online since 1998. In addition to registrations in several countries around the world, Complainant holds a United States Patent and Trademark Office (“USPTO”) registration for the LIVESCORE mark (Reg. No. 2,514,933 issued December 4, 2001). Complainant has also registered the <livescore.com> domain name for use in connection with its business.
Respondent registered the <1livescore.com> domain name February 28, 2007. Respondent is using the disputed domain name to redirect Internet users to its website at the <hotlivescore.com> domain name, which features services identical to, and in direct competition with, Complainant. After Complainant contacted Respondent regarding the disputed domain name, Respondent offered to sell the <1livescore.com> domain name to Complainant for $10,000, an amount in excess of Respondent’s out-of-pocket costs.
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 will draw such inferences as the Panel considers to be 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 Complainant to 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 used its LIVESCORE mark since 1998 and its USPTO registration dates back to 2001, well before Respondent’s registration of the disputed domain name. The Panel finds that Complainant established that it has rights to and legitimate interests in the LIVESCORE mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <1livescore.com>
domain name is confusingly similar to Complainant’s LIVESCORE mark. The disputed domain name includes
Complainant’s LIVESCORE mark in its entirety and adds the number “1” and the
generic top-level domain “.com.” Such
additions to Complainant’s registered mark are insufficient to distinguish the
disputed domain name pursuant to Policy ¶ 4(a)(i). See Am. Online, Inc. v. Fu,
D2000-1374 (WIPO Dec. 11, 2000) (finding that adding the suffixes
"502" and "520" to the ICQ trademark does little to reduce
the potential for confusion); see also Omnitel Pronto Italia S.p.A. v. Bella,
D2000-1641 (WIPO Mar. 12, 2001) (finding that the contested
<omnitel2000.com> domain name is confusingly similar to the OMNITEL
trademark); see also Isleworth Land Co. v. Lost in Space,
SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established
principle that generic top-level domains are irrelevant when conducting a
Policy ¶ 4(a)(i) analysis.”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights and legitimate interests in the <1livescore.com> domain name. Once Complainant makes a prima facie case, however, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. In the instant case, the Panel finds that Complainant made a prima facie showing under the Policy. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Based on Respondent’s failure to answer the Complaint, the Panel presumes that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint).
Nevertheless, the Panel examines the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c). Complainant asserts that Respondent’s <1livescore.com> domain name resolves to a website that features sports information services that seek to compete with Complainant. The Panel finds that Respondent’s use of the disputed domain name fails to establish either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); see also Clear Channel Commc’ns, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that the respondent, as a competitor of the complainant, had no rights or legitimate interests in a domain name that utilized the complainant’s mark for its competing website).
Complainant further contends that Respondent is not commonly known by the <1livescore.com> domain name and that Complainant has not authorized Respondent to register a domain name featuring Complainant’s mark. In the absence of evidence suggesting otherwise, the Panel finds that Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); 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’s lack of rights and legitimate interests in the <1livescore.com> domain name is further evidenced by Respondent’s offer to sell the disputed domain name to Complainant for an amount in excess of expected out-of-pocket costs. See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent is using the disputed domain name to operate a
website with links to services identical to, and that compete with,
Complainant’s own services. The Panel
finds that Respondent’s use of the <1livescore.com>
domain name amounts to a disruption of Complainant’s business and
evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See
Moreover, Respondent’s use will likely cause confusion as to Complainant’s sponsorship of and affiliation with the resulting websites. The Panel finds that such use of a domain name for Respondent’s own commercial gain is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
Furthermore, Respondent’s offer to sell the <1livescore.com> domain name to
Complainant for an amount in excess of its out-of-pockets costs is also
evidence of Respondent’s bad faith registration and use of the disputed domain
name under Policy ¶ 4(b)(i). See Little Six, Inc. v. Domain For
The Panel finds that Complainant 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 <1livescore.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 26, 2007.
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