Sea World, Inc. v. M Badger
Claim Number: FA0905001263562
Complainant is Sea World, Inc. (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <seaworldadventurepark.info>, registered with GoDaddy.com, Inc.
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 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 19, 2009.
On May 19, 2009, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <seaworldadventurepark.info> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 20, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 9, 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@seaworldadventurepark.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 11, 2009, 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
<seaworldadventurepark.info>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <seaworldadventurepark.info> domain name.
3. Respondent registered and used the <seaworldadventurepark.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Sea World, Inc.,
is a leading entertainment venue company that operates three Sea World
amusement parks in the
Respondent registered the <seaworldadventurepark.info> domain name on October 27, 2004. The disputed domain name resolves to a website that advertises Complainant’s Sea World amusement parks and displays hyperlinks to third-party entertainment events that directly compete 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.
The Panel finds that Complainant has sufficiently
established rights in the
Respondent’s <seaworldadventurepark.info>
domain name contains a significant portion of Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
At the outset, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also 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).”).
Respondent’s <seaworldadventurepark.info>
domain name
resolves to a website that advertises Complainant’s Sea World amusement
parks and displays hyperlinks to third-party entertainment events that directly
compete with Complainant. The Panel
infers that Respondent receives click-through fees for these hyperlinks. Accordingly, the Panel finds that
Respondent’s use of the disputed domain name diverts Internet users to its
website for a presumed fee. Therefore, the Panel finds that such use is not a bona fide offering of goods and services
under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶
4(c)(iii). See Skyhawke Techns., LLC v.
Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com>
domain name to display a list of hyperlinks, some of which advertise
Complainant and its competitors’ products.
The Panel finds that this use of the disputed domain name does not
constitute 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. Albloushi,
FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s
contention of rights and legitimate interests in the <bravoclub.com>
domain name because the respondent was merely using the domain name to operate
a website containing links to various competing commercial websites, which the
panel did not find to be a use in connection with a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii)).
Moreover, Respondent is listed in the WHOIS information as “M Badger,” which does not indicate that
Respondent is commonly known by the <seaworldadventurepark.info>
domain name. Respondent has not offered any evidence to
indicate otherwise. The Panel finds that
Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun
Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that
the respondent was not commonly known by the disputed domain names where the
WHOIS information, as well as all other information in the record, gave no
indication that the respondent was commonly known by the disputed domain names,
and the complainant had not authorized the respondent to register a domain name
containing its registered mark); see also
M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not
commonly known by the <cigaraficionada.com> domain name under Policy ¶
4(c)(ii) based on the WHOIS information and other evidence in the record).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using
the website resolving from the confusingly similar <seaworldadventurepark.info> domain name to display advertisements for
Complainant’s services and display hyperlinks to third-party websites that
directly compete with Complainant.
Therefore, the Panel finds that this diversion of Internet users to
Respondent’s website, by using the confusingly similar disputed domain name,
disrupts Complainant’s business and constitutes bad faith registration and use
under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke,
FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged
in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the
disputed domain names to operate a commercial search engine with links to the
products of the complainant and to complainant’s competitors, as well as by
diverting Internet users to several other domain names); see also 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)).
Furthermore, Respondent is using to the disputed domain to
presumably collect click-through fees.
The Panel finds that Respondent’s use of the confusingly similar <seaworldadventurepark.info> domain name creates a likelihood of confusion
as to Complainant’s affiliation with the disputed domain name and Respondent is
commercially gaining from that confusion through the presumed receipt of fees. Therefore, the Panel finds that Respondent’s
actions constitute bad faith registration and use under Policy ¶ 4(b)(iv). See Zee
TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding
that the respondent engaged in bad faith registration and use by using a domain
name that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
complainant); see also
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 <seaworldadventurepark.info> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: June 25, 2009
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