National Collegiate Athletic Association
v. Razor Gator a/k/a The Special Events Sports Company, Inc. a/k/a FF
Basketball
Claim Number: FA0205000113981
PARTIES
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.
PANEL
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.
PROCEDURAL HISTORY
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 postmaster@finalfourtickets.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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
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.
FINDINGS
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.
DISCUSSION
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.
DECISION
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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