Academy, Ltd., d/b/a Academy Sports & Outdoors v. Lu Lan
Claim Number: FA1001001302547
Complainant is Academy, Ltd., d/b/a Academy Sports & Outdoors
(“Complainant”), represented by Wendy C. Larson, Texas, USA. Respondent is Lu Lan (“Respondent”),
REGISTRAR
The domain names at issue are <academysportinggood.com>, <academysportd.com>, and <academaysports.com>, registered with Above, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 14, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 3, 2010 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@academysportinggood.com, postmaster@academysportd.com, and postmaster@ academaysports.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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <academysportinggood.com>, <academysportd.com>, and <academaysports.com> domain names are confusingly similar to Complainant’s ACADEMY mark.
2. Respondent does not have any rights or legitimate interests in the <academysportinggood.com>, <academysportd.com>, and <academaysports.com> domain names.
3. Respondent registered and used the <academysportinggood.com>, <academysportd.com>, and <academaysports.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Academy, Ltd.,
d/b/a Academy Sports & Outdoors, is one of the largest sporting goods
retailers in the
Respondent, Lu Lan,
registered the <academysportinggood.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.
Complainant owns trademark registrations for the ACADEMY and
related marks with the USPTO (e.g., Reg. No. 1,911,968 issued
Complainant argues that Respondent’s disputed domain names
are confusingly similar to Complainant’s ACADEMY mark pursuant to Policy ¶ 4(a)(i). Respondent’s
disputed domain names all differ from Complainant’s mark only slightly. Both the <academysportinggood.com> and <academysportd.com> domain names wholly incorporate Complainant’s
ACADEMY mark; add the generic terms “sporting” and “good” or “sportd,” which is
a misspelled form of “sports”; and affix the generic top-level domain (“gTLD”)
“.com.” The disputed domain name <academaysports.com> contains a
misspelled version of Complainant’s ACADEMY mark because it inserts an extra
“a”; adds the generic term “sports”; and affixes the gTLD “.com.” The Panel finds that a domain name that
includes the identical mark of the Complainant combined with a generic term
fails to distinguish the Respondent’s disputed domain name and the Complainant’s
mark. See Arthur Guinness Son & Co. (
A simple misspelling of Complainant’s mark is also insufficient to prevent confusing similarity between the Complainant’s mark and the disputed domain name. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks). The addition of a gTLD is irrelevant in a Policy ¶ 4(a)(i) analysis and does not differentiate the Complainant’s mark from the disputed domain name. See Trip Network Inc. v. Alveira, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant in a Policy ¶ 4(a)(i) analysis and does not create a domain name distinguishable from Complainant’s mark). Therefore, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s ACADEMY mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges Respondent lacks rights and legitimate
interests in the disputed domain names. Once Complainant has put forth a prima facie case, the burden shifts to Respondent to demonstrate
its rights or legitimate interests in the disputed domain names pursuant to
Policy ¶ 4(c). The Panel finds
that Complainant has adequately established a prima facie case in these proceedings. Because Respondent has failed to respond to
the allegations against it, the Panel may assume that Respondent lacks any
rights or legitimate interests in the disputed domain names. The Panel, however, elects to consider the
evidence in the record in light of the Policy ¶ 4(c) factors to determine if
Respondent has any rights or legitimate interests in the disputed domain names. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr.
26, 2006) (finding that “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate
interests in the disputed domain names under Policy ¶ 4(a)(ii),
and then the burden shifts to [the] respondent to show it does have rights or
legitimate interests.”); see also American Express Co. v. Fang Suhendro,
FA 129120 (Nat. Arb. Forum
Complainant contends that Respondent is not commonly known
by the disputed domain names. The Panel
finds that the WHOIS information for the disputed domain name lists the
registrant as “Lu Lan,” which demonstrates that Respondent is not commonly
known by the disputed domain name.
Therefore, pursuant to Policy ¶ 4(c)(ii), the
Panel finds Respondent is not commonly known by the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Respondent’s disputed domain names resolve to websites displaying various third-party links offering products and services that compete with Complainant. The Panel finds that Respondent’s use of the disputed domain names is not 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 Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name); 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)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain names each resolve to websites displaying various third-party links offering products and services that compete with Complainant. Such an activity clearly disrupts Complainant’s business, as Internet users seeking Complainant’s products may inadvertently be diverted to sites featuring competing products. The Panel finds that this disruption of Complainant’s business and diversion of Internet users to Complainant’s competitors shows bad faith registration and use under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010n (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)).
Respondent is using the confusingly similar disputed domain names to attract Internet users seeking Complainant’s products. When Internet users are diverted to Respondent’s resolving websites and then click on any of the third-party links, it is presumed that Respondent receives commercial gain in the form of click-through fees. The Panel finds Respondent’s efforts to mislead Internet users and attract Complainant’s business in order to receive commercial gain constitute bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was likely diverting Internet users searching for the complainant to its own website and likely profiting); see also University of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“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).”).
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 <academysportinggood.com>, <academysportd.com>, and <academaysports.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 24, 2010
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