Cavaliers Operating Company LLC; Gund Business Enterprises, Inc; and NBA Media Ventures, LLC. v. BWI Domains c/o Domain Manager
Claim Number: FA0805001192083
Complainant is Cavaliers Operating Company LLC; Gund Business Enterprises, Inc; and NBA Media Ventures, LLC (collectively “Complainant”), represented by Paul Justin, of Cavaliers Operating Company LLC; Gund Business Enterprises, Inc; and NBA Media Ventures, LLC, Ohio, USA. Respondent is BWI Domains c/o Domain Manager (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <clevelandcavs.com>, registered with Rebel.com.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 20, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 27, 2008.
On May 23, 2008, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <clevelandcavs.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.com 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
29, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 18, 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 postmaster@clevelandcavs.com by
e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 23, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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. Respondent’s <clevelandcavs.com> domain name is confusingly similar to Complainant’s CAVS mark.
2. Respondent does not have any rights or legitimate interests in the <clevelandcavs.com> domain name.
3. Respondent registered and used the <clevelandcavs.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cavaliers Operating Company LLC; Gund Business Enterprises, Inc; and NBA Media Ventures, LLC, has owned the Cleveland Cavaliers basketball team since 1970. The basketball team participates in the National Basketball Association (“NBA”). Complainant registered a total of 11 marks including the CAVS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,309,404 issued Dec. 11, 1984).
Respondent registered the disputed domain name on September 25, 2004. The <clevelandcavs.com> domain name currently resolves to a website displaying third-party links that directly compete with Complainant’s business.
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 concludes that Complainant has satisfied the requirements set forth in Policy ¶ 4(a)(i).
Based on the rules of the UDRP, the initial burden of proof lies with Complainant. It must be sufficiently proven to the Panel that Respondent lacks rights and legitimate interest in the disputed domain name before the burden will fall upon Respondent. Complainant must make a prima facie case prior to the burden shift. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant asserts that Respondent has never been authorized to use the CAVS mark, and that Respondent is not and has never been commonly known by the disputed domain name. Further, the WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not commonly known by the <clevelandcavs.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Respondent is using the <clevelandcavs.com> domain name to advertise links to third-party competitors. The Panel finds that such use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also 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).
Based on the Complaint, the Panel finds that Complainant has made a prima facie case regarding Respondent’s lack of rights and legitimate interest in the disputed domain name. Based on the fact that Respondent has not responded to the proceedings, the Panel finds that Complainant has satisfied the requirements set forth in Policy ¶ 4(a)(ii).
The Panel finds that Respondent’s use of the <clevelandcavs.com> domain name to commercially gain by advertising links to competing services constitutes bad faith registration and use 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).
Complainant contends that Respondent is using the <clevelandcavs.com> domain name
for commercial gain by displaying links to competing services, and benefiting
from the likely confusion between Complainant’s mark and the disputed domain
name. The Panel finds that the
similarity between the disputed domain name and the CAVS mark are likely to
create confusion as to Complainant’s source, sponsorship, affiliation, or endorsement
of the website that resolves from the disputed domain name which constitutes
bad faith registration and use under Policy ¶ 4(b)(iv). See
AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith
under Policy ¶ 4(b)(iv) where the respondent’s domain
name resolved to a website that offered links to third-party websites that
offered services similar to the complainant’s services and merely took
advantage of Internet user mistakes); see also Gardens Alive, Inc. v. D&S Linx,
FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the
<my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii)
and (iv) because Respondent is using a domain name that is confusingly similar
to the MYSEASONS mark for commercial benefit by diverting Internet users to the
<thumbgreen.com> website, which sells competing goods and services.”).
The Panel concludes that Complainant has satisfied the requirements set forth in 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 <clevelandcavs.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: July 2, 2008
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