Showboat, Inc. v. Sports Management
Claim Number: FA0205000114376
Complainant is Showboat, Inc., Las Vegas, NV, USA (“Complainant”) represented by David J. Stewart, of Alston & Bird, LLP. Respondent is Sports Management, Freeport, BAHAMAS (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <showboatsportsbook.com>, registered with Tucows, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 22, 2002; the Forum received a hard copy of the Complaint on May 28, 2002.
On May 22, 2002, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <showboatsportsbook.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 31, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 20, 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 July 8, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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.
The <showboatsportsbook.com> domain name is confusingly similar to Complainant’s SHOWBOAT mark.
Respondent has no rights or legitimate interests in the <showboatsportsbook.com> domain name.
Respondent registered and used the <showboatsportsbook.com> domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant owns registered trademarks with the United States Patent and Trademark Office for the SHOWBOAT mark (Reg. Nos. 1,078,615; 1,066,734; 1,336,013; 2,123,404; and 2,266,994). Complainant has used the SHOWBOAT mark for over fifty years in connection with casino, hotel, entertainment and restaurant services.
Respondent registered the <showboatsportsbook.com> domain name on September 20, 2002. Respondent uses the domain name as a link to <worldwager.com>, which is a website that offers online sports gambling services. Complainant discovered that Respondent also registered <trumpplazasportsbook.com>, which was transferred to Trump Hotels & Casino Resorts Inc. in a previous National Arbitration Forum decision.
On September 21, 2001, Complainant sent a cease and desist letter to Respondent. Complainant never received any response to the letter.
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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the 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 and/or Confusingly Similar
Complainant has established its rights to the SHOWBOAT mark through registration with the United States Patent and Trademark Office and continuous use.
Respondent’s <showboatsportsbook.com> domain name contains Complainant’s entire SHOWBOAT mark with the addition of the phrase “sportsbook.” The addition of “sportsbook” to Complainant’s mark does not create a distinct mark because “sportsbook” has a meaning that relates to Complainant’s gambling services. Therefore, Respondent’s domain name is confusingly similar to Complainant’s mark. See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that 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); see also Space Imaging LLC v. Brownwell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the Respondent’s domain name combines the Complainant’s mark with a generic term that has an obvious relationship to the Complainant’s business).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
In light of Complainant’s assertion that Respondent has no rights or legitimate interests in the disputed domain name and Respondent’s failure to respond, the Panel may presume Respondent has no such rights or legitimate interests 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 Respondent fails to submit a Response, the Panel is permitted to make all inferences in favor of Complainant. See 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”).
Respondent uses the <showboatsportsbook.com> domain name to link Internet users to a sports gambling website, <worldwaging.com>. In doing so, Respondent attempts to confuse and attract Internet users, for its commercial benefit, searching for Complainant’s gambling services. Respondent’s use does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor does it constitute legitimate noncommercial or fair use pursuant to Policy ¶(c)(iii). See Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D.Mass 2002) (finding that, because the Respondent's sole purpose in selecting the domain names was to cause confusion with the Complainant's website and marks, it's use of the names was not in connection with the offering of goods or services or any other fair use).
Respondent never received authorization or consent, express or implied, to use Complainant’s SHOWBOAT mark for any purpose. Respondent is not commonly known by SHOWBOATSPORTSBOOK or <showboatsportsbook.com>; Respondent is known to this Panel as Sports Management. Therefore, Respondent does not have any rights or legitimate interests in the domain name pursuant to 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).
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name, thus, Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent’s use of the <showboatsportsbook.com> domain name represents a classic case of bad faith. As previously stated, Respondent uses the domain name to link Internet users to <worldwager.com>, a sports gambling website. Complainant is in the gaming business, so Respondent’s trading on Complainant’s mark is done for the purpose of attracting Complainant’s potential customers. Since Respondent uses Complainant’s mark in connection with gambling services, consumers would likely be confused as to the website’s sponsorship or affiliation. Therefore, Respondent’s use of the <showboatsportsbook.com> domain name constitutes bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 WIPO Apr. 22, 2000) (finding bad faith where Respondent attempted to attract customers to its website, <efitnesswholesale.com>, and created confusion by offering similar products for sale as Complainant); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding bad faith where the Respondent attracted users to a website sponsored by the Respondent and created confusion with the Complainant’s mark as to the source, sponsorship, or affiliation of that website).
Respondent’s infringing registration of <trumpplazasportsbook.com> evidences a pattern of registering marks that have a connection to gambling services as a means to capture confused Internet users. Therefore, Respondent’s past behavior permits a finding of bad faith registration of the <showboatsportsbook.com> domain name under Policy ¶ 4(b)(ii). See Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (Sept. 6, 2000) (finding bad faith where the Respondent engaged in the practice of registering domain names containing the trademarks of others); see also Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names which infringe upon others’ famous and registered trademarks).
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 <showboatsportsbook.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 11, 2002
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