Claim Number: FA0901001242359
Complainant is Texas Rangers Baseball Partners (“Complainant”), represented by Richard
S. Mandel, of Cowan, Liebowitz & Latman, P.C.,
Saint Kitts.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <rangersbaseball.com>, registered with Moniker Online Services, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 12, 2009; the National Arbitration Forum received a hard copy of the Complaint on January 14, 2009.
On January 14, 2009, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <rangersbaseball.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 January
15, 2009, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
February 4, 2009
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@rangersbaseball.com by
e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 10, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 <rangersbaseball.com> domain name is confusingly similar to Complainant’s RANGERS mark.
2. Respondent does not have any rights or legitimate interests in the <rangersbaseball.com> domain name.
3. Respondent registered and used the <rangersbaseball.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the Major League Baseball team known as the Texas Rangers. Since 1972, the Texas Rangers have been more commonly known as the Rangers. Numerous famous ball players made their mark on the sport as team members on the Rangers (e.g. Nolan Ryan). Complainant registered the RANGERS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,620,794 issued November 6, 1994). The RANGERS mark has become a globally recognized symbol of the baseball team.
Respondent registered the <rangersbaseball.com> on June 12, 2004. The disputed domain name resolves to a landing site containing links to third-party commercial sites, such as ticket vendors, as well as goods and services wholly unconnected with Complainant.
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.
Complainant’s registration of its mark with the USPTO is sufficient to establish Complainant’s rights in the RANGERS mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <rangersbaseball.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). Respondent’s addition of the descriptive term “baseball” does nothing to reduce possible confusion by an Internet user. See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
The initial burden is on the Complainant to make a prima facie case in support of its
allegations. Once accomplished, the
burden then shifts to Respondent to prove it has rights or legitimate interests
in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has
established its prima facie case
pursuant to Policy
¶ 4(a)(ii). See Swedish Match UK Ltd. v.
Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding
that once a prima facie case has been
established by the complainant, the burden then shifts to the respondent to
demonstrate its rights or legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(c)); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum
Aug. 18, 2006) (holding that the complainant must first make a prima facie
case that the respondent lacks rights and legitimate interests in the disputed
domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent
to show that it does have rights or legitimate interests in a domain name).
Respondent has not answered the Complaint. Although the Panel may decide that failure to respond demonstrates a lack of rights and legitimate interests on Respondent’s part, the Panel chooses to examine whether Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). The Panel may accept the allegations in the Complaint as true unless clearly contradicted by the evidence. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
The disputed domain name resolves to a landing site that
displays links to third-party commercial websites, many of which directly
compete with Complainant in licensed merchandise. Respondent’s website is presumed to be a
pay-per-click site that remunerates Respondent through referral fees. Collection of fees occurs when confused
Internet users click-through the advertised links assuming affiliation with
Complainant. The Panel finds that
Respondent’s use of the disputed domain name to divert Internet users from
Complainant through the use of its own mark is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the disputed
domain name under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA
918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a
pay-per-click website at a confusingly similar domain name was 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 also ALPITOUR S.p.A. v. balata inc, FA
888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly
similar <viaggidea.com> domain
name to operate a website that
features links to various commercial websites from which Respondent presumably
receives referral fees….is neither a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair
use pursuant to Policy ¶ 4(c)(iii).”).
The WHOIS information
for Respondent lists the registrant as “Domain Names, Administration c/o St.
Kitts Registry.” Without further
evidence, the Panel finds that Respondent is not commonly known by the disputed
domain name pursuant to Policy
¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat.
Arb. Forum July 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name); 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s disputed domain name lures confused Internet
users to its site because of the illusion created by Respondent that the site
is affiliated with Complainant, thereby disrupting Complainant’s business. Use of the disputed domain name in this
manner is evidence of bad faith registration and use on the part of Respondent
pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v.
Domain Mgmt. Servs., FA
877982
(Nat. Arb. Forum Feb.
13, 2007) (concluding that the use of a confusingly similar domain name to
attract Internet users to a directory website containing commercial links to the
websites of a complainant’s competitors represents bad faith registration and
use under Policy ¶ 4(b)(iii)); see
also
The commercial aspect of the disputed domain name
demonstrates bad faith registration and use by Respondent. By using Complainant’s entire mark in the
disputed domain name and, thereby, trading on Complainant’s recognition,
Respondent’s coffers are filled when perplexed Internet users click through the
advertised links assuming at least a tenuous association with Complainant. The Panel finds this as further evidence of
Respondent’s bad faith registration and use of the disputed domain name
pursuant to Policy ¶ 4(b)(iv). See
The Panel finds that Complainant has satisfied 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 <rangersbaseball.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 23, 2009
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