Academy, Ltd., d/b/a Academy Sports & Outdoors v. Shu Lin c/o N/A
Claim Number: FA0910001292022
Complainant is Academy,
Ltd., d/b/a Academy Sports &
Outdoors (“Complainant”), represented by Wendy C. Larson, of Pirkey Barber, Texas, USA. Respondent is Shu Lin c/o N/A (“Respondent”),
REGISTRAR
The domain name at issue is <acamedysportsandoutdoors.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On November 5, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 25, 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@acamedysportsandoutdoors.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <acamedysportsandoutdoors.com> domain name is confusingly similar to Complainant’s ACADEMY SPORTS + OUTDOORS mark.
2. Respondent does not have any rights or legitimate interests in the <acamedysportsandoutdoors.com> domain name.
3. Respondent registered and used the <acamedysportsandoutdoors.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Academy, Ltd., d/b/a Academy Sports &
Outdoors, is a large sporting goods retailer in the
Respondent, Shu Lin c/o N/A, registered the <acamedysportsandoutdoors.com>
domain name on
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 ACADEMY SPORTS + OUTDOORS mark for the purposes of Policy ¶ 4(a)(i) through its trademark registration with the USPTO (Reg.
No. 3,338,039 issued November 20, 2007).
Furthermore, the Panel concludes that it is not necessary for
Complainant to have registered its ACADEMY SPORTS + OUTDOORS mark in the
country of Respondent’s residence. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum
Complainant contends that Respondent’s <acamedysportsandoutdoors.com>
domain name is confusingly similar to its ACADEMY SPORTS + OUTDOORS mark under
Policy ¶ 4(a)(i).
The disputed domain name incorporates the distinctive portion of
Complainant’s mark with the mere misspelling of “academy” by juxtaposing the
letters “m” and “d” and the substitution of the word “and” for the positive
symbol “+.” Additionally, the spaces are
omitted between the terms that comprise Complainant’s mark and the generic
top-level domain “.com” is affixed. The
Panel finds that these alterations are inconsequential for the purposes of a
Policy ¶ 4(a)(i) analysis. See Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat.
Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and
<wyandham.com> domain names to be confusingly similar to the
complainant’s WYNDHAM mark because the domain names merely transposed letters
in the mark); see also Wright & Lato, Inc. v. Epstein, D2000-0621 (WIPO Sept. 2, 2000) (finding that the
<wrightandlato.com> domain name is identical to the complainant’s WRIGHT
& LATO mark, because the ampersand symbol (&) is not reproducible in a
URL); Bond
& Co. Jewelers, Inc. v. Texas Int’l Prop. Assocs., FA 937650 (Nat.
Arb. Forum
The Panel finds that Complainant
has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <acamedysportsandoutdoors.com> domain name. The burden shifts to Respondent to prove it does have rights or legitimate interests when Complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). The Panel finds Complainant made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to infer that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the [UDRP].”).
Respondent’s <acamedysportsandoutdoors.com> domain name resolves to a website featuring a list of click-through links pertaining to sporting goods and sports merchandise. The hyperlinks further resolve to the websites of Complainant’s direct competitors in the sports industry. The Panel presumes that Respondent is profiting through the generation of click-through fees. Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (concluding that using a confusingly similar domain name to divert Internet users to competing websites does not represent 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 Skyhawke Techs., 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).”).
Furthermore, Respondent has attempted to sell the disputed domain name to Complainant for $999.00 in addition to an unspecified amount of escrow fees. Complainant contends that this amount is in excess of Respondent’s out-of-pocket fees corresponding to the disputed domain name. Thus, the Panel finds this is further evidence that Respondent lacks rights and legitimate interests in the <acamedysportsandoutdoors.com> domain name under Policy ¶ 4(a)(ii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“An attempt by a respondent to sell a domain name to a complainant who owns a trademark with which the domain name is confusingly similar for an amount in excess of out-of-pocket costs has been held to demonstrate a lack of legitimate rights or interests.”); see also Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that Respondent’s apparent offers to sell the disputed domain name to Complainant for an amount in excess of Respondent’s out-of-pocket expenses is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Respondent’s
<acamedysportsandoutdoors.com> domain name resolves to a website
that promotes Complainant’s competitors in the sporting goods industry through the
use of click-through links. Such an activity clearly disrupts
Complainant’s business, as Internet users seeking Complainant’s products will
be redirected to Complainant’s competitors. The Panel finds that this
qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See David Hall Rare Coins v.
Additionally,
Respondent has created a likelihood of confusion for commercial gain as to
Complainant’s source and affiliation with the <acamedysportsandoutdoors.com>
domain name and the resolving website. Respondent is presumably
monetarily benefiting through the receipt of referral fees accrued when
Internet users click on the competitive links. This constitutes further
evidence that Respondent has registered and used the disputed domain name in
bad faith under Policy ¶ 4(b)(iv). See Asbury
Auto. Group, Inc. v.
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 <acamedysportsandoutdoors.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 16, 2009
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