The Finish Line, Inc. v. Nazfezer Terrazik c/o Nafzer
Claim Number: FA0910001292026
Complainant is The Finish Line, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <finsihline.com>, registered with Enom, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 29, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 30, 2009.
On October 29, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <finsihline.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 November 3, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 23, 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@finsihline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 28, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant specializes in
athletic footwear, apparel, and accessories.
Complainant has used its
FINISH LINE trademark continuously since 1981 in connection with retail
clothing, footwear, and shoe store services.
Complainant holds a
registration of the FINISH LINE mark with the United States Patent and
Trademark Office (“USPTO”) (Reg. No. 1,772,105, issued May 18, 1993).
Respondent registered the <finsihline.com> domain name on April 26, 2002.
The disputed domain name resolves to a website that displays hyperlinks to third-party websites, some of which directly compete with the business of Complainant.
Respondent’s <finsihline.com> domain name is confusingly similar to Complainant’s FINISH LINE mark.
Respondent does not have any rights to or legitimate interests in the <finsihline.com> domain name.
Respondent registered and uses the <finsihline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has sufficiently established rights in the
FINISH LINE mark under Policy ¶ 4(a)(i) through its
registration of the mark with the USPTO.
Respondent’s <finsihline.com> domain name contains a misspelling of Complainant’s FINISH LINE mark, i.e., the letters “i” and “s” are transposed. In addition, Respondent has added the generic top-level domain (“gTLD”) “.com” in forming the disputed domain name. Neither the misspelling of Complainant’s mark nor the addition of a gTLD sufficiently distinguishes the disputed domain name from Complainant’s mark for purposes of the Policy. Therefore, the <finsihline.com> domain name is confusingly similar to Complainant’s FINISH LINE mark under Policy ¶ 4(a)(i). See Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to a complainant’s DELTA mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a competing mark).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name. The burden then shifts to Respondent and to establish that it has rights to or legitimate interests in the disputed domain name. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make out a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have rights to or legitimate interests in a domain name).
Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). Because no response to the Complaint has been received from Respondent, we are entitled to presume that it has no rights to or interests in the disputed domain name which are cognizable under the Policy. 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).
We will nonetheless examine the record before us to determine, by reference to the criteria set out in Policy ¶ 4(c), whether there is in it any basis for concluding that Respondent has any rights or interests which might satisfy the Policy.
We begin by observing that the WHOIS information for the <finsihline.com> domain name lists “Nazfezer Terrazik c/o Nafzer” only as the
registrant. Because there is in the
record no other evidence bearing on this question, we must conclude that Respondent is not commonly known by the
disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” is a factor in determining that Policy ¶ 4(c)(ii)
does not apply); see also Coppertown
Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat.
Arb. Forum July 17, 2006) (concluding that a respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the pertinent WHOIS information, suggesting
that that respondent was commonly known by the disputed domain).
We also note that there is no dispute as to the allegation of the Complaint that Respondent’s <finsihline.com> domain name resolves to a website that features hyperlinks to third-party websites, some of which compete with Complainant’s athletic footwear business. From the circumstances presented, we presume that Respondent receives click-through fees for these each visit by an Internet user to one of these links. Respondent’s use of the disputed domain name as thus alleged 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 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 contested 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. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name where that respondent was using the domain name to operate a website containing links to various competing commercial websites, which the panel found not 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)).
Finally, we take
notice of the fact that Respondent is evidently engaged in typo-squatting,
because Respondent’s domain name takes advantage of a common misspelling of
Complainant’s FINISH LINE mark. Typo-squatting
is further evidence that Respondent lacks rights to and legitimate interests in
the <finsihline.com> domain name under Policy ¶ 4(a)(ii). See, for
example, Microsoft Corp. v. Domain Registration
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
We have already concluded that Respondent’s <finsihline.com> domain name resolves to a website featuring links to third-party websites, some of which compete with Complainant’s athletic footwear business. Respondent’s use of the disputed domain name in this fashion disrupts Complainant’s business, and such disruption constitutes bad faith registration and use of the contested domain name under 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 contested 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 of the domain under Policy ¶ 4(b)(iii)); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use of a disputed domain name pursuant to Policy ¶ 4(b)(iii) by using it to operate a search engine with links to the products of a complainant and to that complainant’s business competitors).
Respondent’s use of the <finsihline.com>
domain name as asserted in the
Complaint creates a likelihood of confusion as to Complainant’s possible affiliation
with the disputed domain name or the resolving website. We have presumed from the surrounding
circumstances that Respondent gains commercially from this likelihood of
confusion by receiving click-through fees.
Taken together, this behavior by Respondent constitutes further evidence
of bad faith registration and use of the disputed domain name under Policy ¶
4(b)(iv). See
Respondent is using the disputed domain name
to operate a website which features links to competing and non-competing
commercial websites from which Respondent presumably receives referral
fees. Such use for Respondent’s own commercial
gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
See also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that a respondent engaged in bad faith registration and use of a domain name that was confusingly similar to a complainant’s mark by using it to offer links to third-party websites offering services similar to those offered by that complainant).
Finally under this head, we conclude that Respondent’s typo-squatting as above-described is further evidence of bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that a respondent engaged in typosquatting, which is evidence of bad faith registration and use of a domain name under Policy ¶ 4(a)(iii)); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004): “By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <finsihline.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 8, 2009
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