Academy, Ltd., d/b/a Academy Sports & Outdoors v. Roiquest.com sprl c/o Domain Administrator
Claim Number: FA1002001306758
Complainant is Academy, Ltd., d/b/a Academy Sports & Outdoors (“Complainant”), represented by Jered
E. Matthysse, Texas, USA.
Respondent is Roiquest.com sprl c/o Domain Administrator (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <acadamy.org>, registered with Fabulous.com Pty Ltd.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 16, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 8, 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@acadamy.org 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 <acadamy.org> domain name is confusingly similar to Complainant’s ACADEMY mark.
2. Respondent does not have any rights or legitimate interests in the <acadamy.org> domain name.
3. Respondent registered and used the <acadamy.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Academy, Ltd.,
d/b/a Academy Sports & Outdoors, holds a trademark registration with the
United States Patent and Trademark Office (“USPTO”) for its ACADEMY mark (Reg.
No. 1,911,968 issued August 15, 1995) in connection with retail store services
in the field of sporting and athletic equipment.
Respondent, Roiquest.com sprl
c/o Domain Administrator, registered the <acadamy.org> 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.
Respondent, Roiquest.com sprl
c/o Domain Administrator, registered the <acadamy.org> domain name on
Complainant argues that Respondent’s <acadamy.org> domain name is confusingly similar to Complainant’s
ACADEMY mark pursuant to Policy ¶ 4(a)(i).
Respondent’s disputed domain name is confusingly similar to
Complainant’s mark as it merely replaces the letter “e” with the letter “a” and
adds the generic top-level domain (“gTLD”) “.org.” The Panel finds that the misspelling of
Complainant’s mark creates a confusing similarity between the disputed domain
name and Complainant’s mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See 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 Policy.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)).
The WHOIS information lists the registrant as “Roiquest.com sprl c/o Domain Administrator.” There does not appear to be any other
evidence in the record that Respondent is commonly known by the disputed domain
name. Therefore, without evidence to the
contrary, the Panel finds that Respondent is not commonly known by the disputed
domain name. See 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); see also 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).
Respondent, Roiquest.com sprl c/o Domain Administrator, registered
the <acadamy.org> domain
name on
Complainant asserts
that Respondent is engaged in the practice of typosquatting by using a
typographical error in the confusingly similar disputed domain name to
intentionally attract Internet users seeking Complainant’s website and
redirecting them to Respondent’s disputed domain name. The Panel finds that typosquatting is further
evidence that Respondent lacks rights and legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked
rights and legitimate interests in the disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the disputed domain
name to link Internet users seeking Complainant’s goods to websites in direct
competition with Complainant’s business constitutes a disruption of
Complainant’s business pursuant to Policy ¶ 4(b)(iii). See
Persohn v.
Lim, FA 874447 (Nat. Arb. Forum Feb.
19, 2007) (finding bad faith registration and use pursuant to Policy ¶
4(b)(iii) where a respondent used the disputed domain name to operate a
commercial search engine with links to the complainant’s competitors); see also
The Panel finds that Respondent is using the disputed domain
name to intentionally attract Internet users and profit through the receipt of
click-through fees. The Panel finds that
this use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See
As established previously, Respondent is engaged in the
practice of typosquatting. The Panel
finds that typosquatting is itself evidence of bad faith registration and use
pursuant to Policy ¶ 4(a)(iii). See
Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb.
Forum
The Panel finds that 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 <acadamy.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: March 26, 2010
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