National Collegiate Athletic Association v. Razor Gator a/k/a The Special Events Sports Company, Inc. a/k/a FF Basketball
Claim Number: FA0205000113981
Complainant is National Collegiate Athletic Association, Indianapolis, IN (“Complainant”) represented by Scott A. Bearby. Respondent is Razor Gator a/k/a The Special Events Sports Company, Inc. a/k/a FF Basketball, Los Angeles, CA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <finalfourtickets.com>, registered with Tucows, Inc.
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 (the “Forum”) electronically on May 15, 2002; the Forum received a hard copy of the Complaint on May 17, 2002.
On May 16, 2002, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <finalfourtickets.com> is registered with Tucows, Inc. and that 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 May 21, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 10, 2002 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 email@example.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On June 20, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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.” 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 makes the following allegations in this proceeding:
The <finalfourtickets.com> domain name registered by Respondent is confusingly similar to the FINAL FOUR mark in which Complainant has rights. Respondent has no rights or legitimate interests in the FINAL FOUR mark or the <finalfourtickets.com> domain name. Respondent registered and used the <finalfourtickets.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns a registered trademark, FINAL FOUR, holding Principal Register of the United States Patent and Trademark Office Registration Number 1,488,836, issued May 17, 1988. Complainant has used the FINAL FOUR mark in association with intercollegiate athletics, specifically NCAA Division I Basketball Championships, since 1978. Due to the extreme popularity of both NCAA Division I Men’s and Women’s Basketball Championships, the FINAL FOUR mark has become famous.
Respondent registered the <finalfourtickets.com> domain name November 23, 1996. Complainant has sent a total of four cease and desist letters to Respondent relative to the <finalfourtickets.com> domain name. Respondent uses the domain name in connection with a website where it offers to sell tickets and package deals to the Complainant’s FINAL FOUR basketball championship.
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 the 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.
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.
Identical to and/or Confusingly Similar
Complainant established in this proceeding that it has rights to the FINAL FOUR mark through registration with the United States Patent and Trademark Office and by subsequent continuous use. The domain name registered by Respondent, <finalfourtickets.com> contains Complainant’s entire FINAL FOUR mark with the addition of the generic, descriptive word “tickets.” Since Complainant’s famous FINAL FOUR mark denotes a sporting event that requires tickets to attend, the word “tickets” indicates an offering of Complainant’s basketball tickets for sale. Therefore, Respondent’s addition of a generic, descriptive word that has a relation to Complainant’s mark does not defeat a confusing similarity claim under Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownwell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where Respondent’s domain name combines Complainant’s mark with a generic term that has an obvious relationship to Complainant’s business); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding the <hoylecasino.net> domain name is confusingly similar to Complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which Complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant established in this proceeding that it has rights in the FINAL FOUR mark. Respondent has not submitted a Response in this proceeding and the Panel may presume that Respondent has no such rights in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Furthermore, when a Respondent fails to submit a Response, the Panel is permitted to make all inferences in favor of Complainant. See Vertical Solutions Mgmt., Inc. v. Webnet-Marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
Respondent uses the <finalfourtickets.com> domain name as an address for its website that offers Complainant’s FINAL FOUR basketball tickets for sale. Complainant has asserted that Respondent has no authorization to use Complainant’s FINAL FOUR mark in this manner and Complainant has alleged that Respondent has no authorization to sell Complainant’s FINAL FOUR basketball tickets. Respondent has not come forward with proof of such rights or legitimate interests. The Panel takes as true in the absence of a Response that Complainant never licensed or authorized Respondent to use its FINAL FOUR mark. Therefore, Respondent’s use does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). See Nat’l Collegiate Athletic Ass’n v. Halpern, D2000-0700 (WIPO Dec. 10, 2000) (finding that domain names used to sell Complainant’s goods without Complainant’s authority, as well as others’ goods is not bona fide use); see also Chanel, Inc. v. Cologne Zone, D2000-1809 (WIPO Feb. 22, 2001) (finding that use of Complainant’s mark to sell Complainant’s perfume, as well as other brands of perfume, is not bona fide use).
In addition, Respondent is not commonly known as FINAL FOUR or <finalfourtickets.com>. Respondent’s business(es) appear to operate under the names Razor Gator, The Special Events Sports Company and/or FF Basketball. The FF Basketball name is not registered with the California Secretary of State and seems to be a counterfeit name. In light of the foregoing, Respondent has not met the requirements of Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
Respondent’s use of Complainant’s FINAL FOUR mark attracts potential consumers of Complainant’s FINAL FOUR basketball tickets to Respondent’s website. At Respondent’s website an Internet user has the option to buy Complainant’s FINAL FOUR basketball tickets at an inflated price. Thus, Complainant’s FINAL FOUR mark is used by Respondent to divert Internet users searching for Complainant’s Final Four basketball tickets. Therefore, Respondent’s conduct violates Policy ¶ 4(c)(iii). See Caterpillar Inc. v. Quin, D2000-0314 (WIPO June 12, 2000) (finding that Respondent does not have a legitimate interest in using the domain names <caterpillarparts.com> and <caterpillarspares.com> to suggest a connection or relationship, which does not exist, with Complainant's mark CATERPILLAR); see also Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark).
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name; thus, Policy ¶ 4(a)(ii) has been satisfied.
Since Respondent actually uses the <finalfourtickets.com> domain name for a website to sell Complainant’s FINAL FOUR basketball tickets, Respondent’s use of the domain name creates a likelihood of confusion with Complainant’s FINAL FOUR mark as to the sponsorship, affiliation, or endorsement Respondent’s website. Therefore, Respondent’s activities constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding bad faith where Respondent attracted users to a website sponsored by Respondent and created confusion with Complainant’s mark as to the source, sponsorship, or affiliation of that website); see also MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked <drmath.com>, which contains Complainant’s Dr. Math mark, to a website run by the Respondent, creating confusion for Internet users regarding the endorsement, sponsorship, of affiliation of the website); see also Fanuc Ltd v. Mach. Control Serv., FA 93667 (Nat. Arb. Forum Mar. 13, 2000) (finding that Respondent violated Policy ¶ 4(b)(iv) by selling used Fanuc parts and robots on website <fanuc.com> because customers visiting the site were confused as to the relationship between Respondent and Complainant).
Respondent knew of Complainant’s FINAL FOUR mark because Respondent sold Complainant’s basketball tickets under the auspices of the FINAL FOUR mark. Further, Complainant’s FINAL FOUR mark has gained fame over the years and has become synonymous with the NCAA Division I Men’s and Woman’s College Basketball Tournament. Due to the notoriety of Complainant’s FINAL FOUR mark and Respondent’s particular use of the mark, it is clear Respondent had notice of Complainant’s rights and interests in the mark. Therefore, Respondent’s registration and use constitutes bad faith. See Ty Inc. v. Parvin, D2000-0688 (WIPO Nov. 9, 2000) (finding that Respondent’s registration and use of an identical and/or confusingly similar domain name was in bad faith where Complainant’s BEANIE BABIES mark was famous and Respondent should have been aware of it); see also Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) (finding that, in light of the notoriety of Complainants' famous marks, Respondent had actual or constructive knowledge of the BODY BY VICTORIA marks at the time she registered the disputed domain name and such knowledge constituted bad faith); see also Paws, Inc. v. Odie, FA 96206 (Nat. Arb. Forum Jan. 8, 2001) ("Given the uniqueness and the extreme international popularity of the [ODIE] mark, Respondent knew or should have known that registering the domain name in question would infringe upon Complainant's goodwill").
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief should be hereby GRANTED.
Accordingly, it is Ordered that the <finalfourtickets.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: July 8, 2002.
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