Cavaliers Operating Company LLC; Gund Business Enterprises, Inc; and NBA Media Ventures, LLC v. Web Advertising Corp.
Claim Number: FA0804001181065
Complainant is Cavaliers Operating Company LLC c/o Gund Business Enterprises, Inc c/o NBA Media Ventures, LLC (“Complainant”), represented by Paul Justin, Ohio, USA. Respondent is Web Advertising Corp. (“Respondent”), The Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <theclevelandcavaliers.com>, registered with Domaindoorman, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On May 5, 2008, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <theclevelandcavaliers.com> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, LLC 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 7, 2008, a Notification of
Complaint and Commencement of Administrative Proceeding (the "Commencement
Notification"), setting a deadline of May 27, 2008
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, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <theclevelandcavaliers.com> domain name is confusingly similar to Complainant’s CLEVELAND CAVALIERS mark.
2. Respondent does not have any rights or legitimate interests in the <theclevelandcavaliers.com> domain name.
3. Respondent registered and used the <theclevelandcavaliers.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cavaliers Operating Company LLC, is the current owner of the Cleveland Cavaliers basketball team that plays in the National Basketball Association. Since 1970, Complainant’s team has operated under the CLEVELAND CAVALIERS mark (Reg. No. 921,747, issued October 5, 1971), which is registered with the United States Patent and Trademark Office (“USPTO”). Complainant formally acquired ownership of the team along with all rights in the mark accordingly. Complainant has sold millions of game tickets, sporting goods, memorabilia, and licensed merchandise, and has featured its mark and logo on radio and television broadcasts, as well as the Internet. Complainant directs Internet traffic to its website through its <clevelandcavaliers.com> domain name.
Respondent registered the <theclevelandcavaliers.com> domain name on November 15, 2006, and is currently using the disputed domain name to resolve to a website that features third-party links to Complainant’s direct competitors, namely third-parties selling game tickets and other team-related merchandise.
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.
The Panel finds that Complainant’s registration of the CLEVELAND CAVALIERS mark with the USPTO confers upon Complainant sufficient rights in the 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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent registered the <theclevelandcavaliers.com>
domain name, which incorporates Complainant’s entire and unmodified CLEVELAND
CAVALIERS mark, while merely adding the generic prefix “the” and the generic
top-level domain (“gTLD”) “.com.” For
the purposes of Policy ¶ 4(a)(i), the inclusion of
“.com” is entirely immaterial, and the addition of the word “the” could not be
said to provide any meaningful semblance of distinction for the disputed domain
name. The wholly dominant and prominent
feature of the disputed domain name undoubtedly remains Complainant’s mark. Therefore, the Panel finds that Respondent’s <theclevelandcavaliers.com>
domain name is confusingly similar to Complainant’s CLEVELAND CAVALIERS mark
pursuant to Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost
in Space, SA, FA 117330 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and
legitimate interests in the disputed domain name. Complainant has therefore set forth a
sufficient prima facie case
supporting its allegations, thus Respondent receives the burden of
demonstrating its rights or legitimate interests in the disputed domain name
under Policy ¶ 4(a)(ii). See 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”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Respondent’s <theclevelandcavaliers.com> domain
name serves only to route Internet users seeking Complainant’s product to
Respondent’s corresponding website, wherein third-party links directly competing
with Complainant are prominently displayed.
Given Complainant’s substantial operations in Internet ticketing and
merchandising, it is difficult to discern any bona fide offering of goods or services by Respondent under Policy
¶ 4(c)(i), or a legitimate noncommercial use under Policy ¶ 4(c)(iii). Respondent presumably profits from the
display of such advertisements through “click-through” referral fees, and it is
clear that the ad content directly relates to Complainant’s mark and
corresponding goodwill. Therefore, the
Panel finds that Respondent lacks rights and legitimate interests under both
Policy ¶¶ 4(c)(i) and (iii). See Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum Sept. 30, 2003)
(“Respondent's demonstrated intent to divert Internet users seeking
Complainant's website to a website of Respondent and for Respondent's benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii).”); see also Am. Online, Inc. v. Tencent Commc’ns Corp.,
FA 93668 (Nat. Arb. Forum
Complainant has asserted that Respondent is not commonly known by the <theclevelandcavaliers.com> domain name. The Panel agrees. The WHOIS domain name registration information lists the registrant as “Web Advertising Corp.,” which does not resemble the disputed domain name. Moreover, there is no offered suggestion that Respondent had any license or permission to use Complainant’s mark in any fashion, much less reflect the mark in this disputed domain name. Respondent has failed to respond to the Complaint, and therefore the Panel is left with no evidence in the record that would suggest that Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under 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 Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s website, corresponding to the disputed domain name, contains third-party advertisements that offer NBA game tickets and merchandise. Complainant relies on online ticketing sales as a revenue source, and therefore Respondent’s website draws away potential Internet customers. Therefore, the Panel finds that Respondent has engaged in bad faith registration under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
Respondent’s disputed domain name is confusingly similar to Complainant’s mark. The corresponding website also features third-party links that compete with Complainant for Respondent’s presumed commercial benefit. Thus, Respondent has created a substantial likelihood of confusion as to Complainant’s affiliation and endorsement of the disputed domain name and corresponding website. Such registration and use clearly targets the goodwill surrounding Complainant’s mark. Therefore, the Panel also finds that Respondent has engaged in bad faith registration under 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 G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
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 relief shall be GRANTED.
Accordingly, it is Ordered that the <theclevelandcavaliers.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 5, 2008
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