SeaWorld, Inc. v. Domain (c/o Rebel.com Privacy Service)
Claim Number: FA0912001299995
Complainant is SeaWorld, Inc. (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <seaworldparks.com>, registered with Rebel.com.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 21, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 22, 2009.
On December 23, 2009, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <seaworldparks.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.com 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 December 29, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 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@seaworldparks.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 28, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <seaworldparks.com> domain name is confusingly similar to Complainant’s SEA WORLD mark.
2. Respondent does not have any rights or legitimate interests in the <seaworldparks.com> domain name.
3. Respondent registered and used the <seaworldparks.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Sea World, Inc.,
is an entertainment venue company that operates commercial theme parks. Complainant uses its SEA WORLD mark in
connection with its commercial theme parks.
Complainant provides evidence of the registration of its SEA WORLD mark
with the Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA202,979
issued January 28, 1974).
Respondent registered the <seaworldparks.com> domain name on June 14, 2007. The disputed domain name resolves to a website that advertises Complainant’s Sea World theme 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 SEA WORLD mark under Policy ¶ 4(a)(i)
through its registration of the SEA WORLD mark
with the CIPO (Reg. No. TMA202,979 issued January 28, 1974). See Miller Brewing
Respondent’s <seaworldparks.com> domain name contains Complainant’s SEA WORLD mark with the addition of the descriptive term “parks,” and the generic top-level domain (“gTLD”) “.com.” The Panel finds Respondent’s <seaworldparks.com> domain name is confusingly similar to Complainant’s SEA WORLD mark under Policy ¶ 4(a)(i) because none of the alterations to Complainant’s mark sufficiently distinguish the disputed domain name from Complainant’s mark. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds 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 <seaworldparks.com>
domain name resolves
to a website that advertises Complainant’s Sea World theme parks and displays
hyperlinks to third-party entertainment events that directly compete with
Complainant. 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 does
not indicate that Respondent is commonly known by the <seaworldparks.com> 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using
the website resolving from the <seaworldparks.com>
domain name to display hyperlinks to
third-party websites that compete with Complainant. The Panel finds this diversion of Internet
users to Respondent’s website 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 the disputed domain to
presumably collect click-through fees.
The Panel finds Respondent’s use of the confusingly similar <seaworldparks.com> 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
click-through fees. Therefore, the Panel
finds 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
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 <seaworldparks.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 10, 2010
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