Turner
Sports, Inc. v. Domain Administration c/o
Claim Number: FA0907001275281
Complainant is Turner
Sports, Inc. (“Complainant”), represented by Emily S. Mechem, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <turnersports.com>, registered with Moniker.
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 July 22, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 23, 2009.
On July 23, 2009, Moniker confirmed by e-mail to the National Arbitration Forum that the <turnersports.com> domain name is registered with Moniker and that Respondent is the current registrant of the name. Moniker has verified that Respondent is bound by the Moniker 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 July 30, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 19, 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@turnersports.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 25, 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 <turnersports.com> domain name is identical to Complainant’s TURNER SPORTS mark.
2. Respondent does not have any rights or legitimate interests in the <turnersports.com> domain name.
3. Respondent registered and used the <turnersports.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Turner Sports, Inc., is the owner of the TURNER SPORTS mark, registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,594,216 issued July 16, 2002). As a subsidiary of Turner Broadcasting System, Complainant uses its TURNER SPORTS mark to broadcast sporting events including NASCAR races, NBA basketball games, and the PGA Championship.
Respondent registered the <turnersports.com> domain name on April 10, 2004. The disputed domain name resolves to a website featuring various third-party sponsored links that further resolve to websites that are unrelated to Complainant and its TURNER SPORTS mark.
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 established rights in
the TURNER SPORTS mark for purposes of Policy ¶ 4(a)(i) through its trademark
registration with the USPTO (Reg. No. 2,594,216 issued July 16, 2002). See
AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding
that where the complainant had submitted evidence of its registration with the
USPTO, “such evidence establishes complainant’s rights in the mark pursuant to
Policy ¶ 4(a)(i).”); see also Expedia,
Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s
trademark registrations with the USPTO adequately demonstrate its rights in the
[EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s <turnersports.com>
domain name incorporates Complainant’s TURNER SPORTS mark in its entirety with
the only alterations being the omission of the space between the terms of the
mark and the affixation of the generic top-level domain “.com.” Prior UDRP precedent has found that such modifications
are irrelevant in a Policy ¶ 4(a)(i) analysis.
Therefore, the Panel concludes that Respondent’s <turnersports.com>
domain name is identical to Complainant’s TURNER SPORTS mark under Policy ¶
4(a)(i). See
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks all rights and legitimate interests in the <turnersports.com> domain name. In instances such as this where Complainant has established a prima facie case against Respondent, the burden of proof shifts from Complainant to Respondent to bring forth evidence of its rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The Panel finds that Complainant has carried its burden of proof and established a prima facie case against Respondent. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”). In these proceedings, Respondent has failed to respond to the allegations against it. Thus, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name. See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). Nevertheless, the Panel will examine the record to determine whether Respondent has any rights or legitimate interests in the <turnersports.com> domain name under Policy ¶ 4(c).
Respondent is using the <turnersports.com> domain name to redirect Internet users to a website containing click-through advertisement links that further resolve to unrelated third-party websites. Complainant contends that Respondent is receiving click-through fees from the placement of these advertisement links. The Panel finds that Respondent’s 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 WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also 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).”).
Complainant contends that Respondent is not commonly known by the <turnersports.com> domain name, as the WHOIS information for the disputed domain name lists the registrant as “Domain Administration c/o Caracas Dating LLC.” Moreover, Complainant contends that it has not licensed the TURNER SPORTS mark for Respondent’s use and that no other evidence exists that Respondent is commonly known by any variant of the <turnersports.com> domain name. Consequently, the Panel finds that Respondent is not commonly known by the <turnersports.com> 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 IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Complainant has satisfied Policy ¶ 4(a)(ii).
The <turnersports.com> domain name displays
click-through advertisement links that divert Internet users to various
unrelated third-party websites.
Complainant contends that Respondent is commercially benefiting from
this diversion scheme through the receipt of click-through fees. The
Panel finds that Respondent intentionally created a likelihood of confusion as
to Complainant’s sponsorship or endorsement of the disputed domain name and
resolving website. Therefore, Respondent has engaged in bad faith
registration and use of the disputed domain name under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645
(Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of
the <bankofamericanfork.com> domain name to maintain a web directory was
evidence of bad faith because the respondent presumably commercially benefited
by receiving click-through fees for diverting Internet users to unrelated
third-party websites); see also The
Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For
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 <turnersports.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: September 3, 2009
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