The Finish Line, Inc. v. Privacy, LLC
Claim Number: FA1003001316014
Complainant is The
Finish Line, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <fineshline.com> and <finishine.com>, registered with Computer Services Langenbach Gmbh d/b/a Joker.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 26, 2010.
On March 31, 2010, Computer Services Langenbach Gmbh d/b/a Joker.com confirmed by e-mail to the National Arbitration Forum that the <fineshline.com> and <finishine.com> domain names are registered with Computer Services Langenbach Gmbh d/b/a Joker.com and that Respondent is the current registrant of the names. Computer Services Langenbach Gmbh d/b/a Joker.com has verified that Respondent is bound by the Computer Services Langenbach Gmbh d/b/a Joker.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 April 1, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 21, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@fineshline.com and postmaster@finishine.com by e-mail. Also on April 1, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 23, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <fineshline.com> and <finishine.com> domain names are confusingly similar to Complainant’s FINISH LINE mark.
2. Respondent does not have any rights or legitimate interests in the <fineshline.com> and <finishine.com> domain names.
3. Respondent registered and used the <fineshline.com> and <finishine.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Finish Line, Inc., utilizes its FINISH LINE mark to market and sell athletic footwear, clothing, and sporting goods. Complainant has offered these products since 1982. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its FINISH LINE mark (e.g., Reg. No. 1,772,105 issued May 18, 1993).
Respondent registered the <fineshline.com> and <finishine.com> domain names on November 27, 2006. The disputed domain names each resolve to websites containing hyperlinks to third-parties, some of which compete with Complainant in the athletic footwear, clothing, and sporting goods industries.
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 holds a trademark registration for its FINISH LINE mark with the USPTO (e.g., Reg. No. 1,772,105 issued May 18, 1993). The Panel finds Complainant’s trademark registration with the USPTO is sufficient to establish rights in Complainant’s FINISH LINE mark pursuant to Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Complainant contends that Respondent’s <fineshline.com> and <finishine.com>
domain names are confusingly similar to Complainant’s FINISH LINE mark. Respondent’s disputed domain names each remove
the space separating the terms of Complainant’s mark. The disputed domain names also both involve
commonly misspelled versions of Complainant’s FINISH LINE mark by either
replacing the letter “i” with the letter “e” or by removing the letter
“l.” The disputed domain names also each
include the generic top-level domain (“gTLD”) “.com.” The Panel determines the removal of a space
and the use of commonly misspelled versions of Complainant’s
mark fail to adequately distinguish the <fineshline.com> and <finishine.com>
domain names from Complainant’s mark. See Bond & Co. Jewelers, Inc. v.
Therefore, the Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <fineshline.com> and <finishine.com> domain names. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <fineshline.com> and <finishine.com> domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also 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.”).
Complainant alleges that Respondent is not commonly known by the <fineshline.com> and <finishine.com> domain names. Respondent has not offered any evidence in support of a finding that Respondent is commonly known by the disputed domain names. Complainant has asserted that Respondent is not licensed to use its FINISH LINE mark and that Respondent is not affiliated with Complainant in any way. The WHOIS information does not indicate the domain name registrant is similar to the <fineshline.com> or <finishine.com> domain names. The Panel finds that Respondent is not commonly known by the <fineshline.com> and <finishine.com> domain names pursuant to Policy 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Respondent’s <fineshline.com> and <finishine.com> domain names resolve to a website containing a list of hyperlinks. The hyperlinks resolve to third-party websites, some of which directly compete with Complainant by offering competing athletic footwear, apparel, and sporting goods. Complainant claims that Respondent receives click-through fees from these hyperlinks. The Panel determines that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial use of the disputed domain names under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
In addition, Complainant contends Respondent’s use of the <fineshline.com> and <finishine.com> domain names constitutes
typosquatting. The Panel finds that
Respondent’s use of domain names that are common misspellings of the FINISH
LINE mark to redirect Internet users seeking Complainant’s website to
Respondent’s website is further evidence that Respondent lacks rights and
legitimate interests pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds Policy ¶ 4(a)(ii) have been satisfied.
Previous panels have held that a respondent’s use of a disputed domain name to resolve to a website featuring hyperlinks to a complainant’s competitors disrupts the complainant’s business and constitutes bad faith registration and use pursuant to 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 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)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)). Respondent uses the <fineshline.com> and <finishine.com> domain names to resolve to websites that contain hyperlinks to Complainant’s competitors in the athletic footwear, apparel, and sporting goods industries. Internet users interested in purchasing these products from Complainant may instead purchase them from one of Complainant’s competitors because of Respondent’s use of the confusingly similar disputed domain names. Therefore, the Panel concludes that Respondent’s use of the <fineshline.com> and <finishine.com> domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iii).
The Panel infers that Respondent receives click-through fees from the aforementioned hyperlinks to Complainant’s competitors. Internet users may become confused as to Complainant’s affiliation with the <fineshline.com> and <finishine.com> domain names, resolving websites, and featured hyperlinks. Respondent attempts to profit from that confusion. The Panel finds that Respondent’s use of the confusingly similar disputed domain names constitutes bad faith registration and use pursuant to 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 Univ. 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).”).
Furthermore, Respondent has engaged in typosquatting through its use of the <fineshline.com> and <finishine.com> domain names, which are common misspellings of Complainant’s FINISH LINE mark. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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).”); Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
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 <fineshline.com> and <finishine.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 30, 2010
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