The Finish Line, Inc. v. N/A c/o Kun Da
Claim Number: FA1003001316217
Complainant is The Finish Line, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is N/A c/o Kun Da (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <finiashline.com>, <finishlini.com>, and <finishlins.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 26, 2010.
On March 30, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <finiashline.com>, <finishlini.com>, and <finishlins.com> domain names are registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the names. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.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 7, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 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@finiashline.com, postmaster@finishlini.com, and postmaster@finishlins.com. Also on April 7, 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 30, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <finiashline.com>, <finishlini.com>, and <finishlins.com> domain names are confusingly similar to Complainant’s FINISH LINE mark.
2. Respondent does not have any rights or legitimate interests in the <finiashline.com>, <finishlini.com>, and <finishlins.com> domain names.
3. Respondent registered and used the <finiashline.com>, <finishlini.com>, and <finishlins.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Finish Line,
Inc., specializes in athletic footwear, apparel, and accessories. Complainant has continuously used its FINISH
LINE mark 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 disputed domain names on or after August 23, 2004. Respondent’s disputed domain names resolve to websites displaying third-party links to websites offering athletic footwear and apparel in competition 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 FINISH LINE mark under Policy ¶ 4(a)(i) through its registration with the USPTO (Reg. No. 1,772,105 issued May 18, 1993). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s disputed domain names contain misspelled versions of Complainant’s FINISH LINE mark. In addition, Respondent added the generic top-level domain (“gTLD”) “.com.” The Panel finds that neither the misspelling of Complainant’s mark nor the addition of a gTLD sufficiently distinguishes the disputed domain names from Complainant’s mark. Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s FINISH LINE mark under Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have any
rights or legitimate interests in the disputed domain names. Once a prima
facie case has been established by Complainant, the burden then 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. Since 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. See
Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006)
(finding the “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 Am. Express Co.
v. Fang Suhendro, FA 129120 (Nat. Arb.
Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is
presumed that Respondent lacks all rights and legitimate interests in the
disputed domain name.”).
Complainant asserts that Respondent is neither commonly
known by the disputed domain names, nor licensed to register a domain name
using the FINISH LINE mark. Respondent’s WHOIS
information identifies the registrant as “N/A c/o Kun Da” and therefore
lacks any defining characteristics relating it to the disputed domain
names. The Panel therefore finds that
Respondent is not commonly known by the disputed domain names pursuant
to 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).
Respondent is using the disputed domain names to display links
advertising third-party websites in competition with Complainant’s offering of
athletic footwear and clothing. The
Panel infers that Respondent is using the disputed domain names to earn
click-through fees, and thus finds that Respondent has not made 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 Wells Fargo
& Co. v. Lin Shun Shing, FA 205699
(Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct
Internet traffic to a website featuring pop-up advertisements and links to
various third-party websites is neither a bona fide offering of goods or
services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation
for each misdirected Internet user); see
also Coryn
Group, Inc. v. Media Insight, FA
198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not
using the domain names for a bona fide offering of goods or services nor
a legitimate noncommercial or fair use because the respondent used the names to
divert Internet users to a website that offered services that competed with
those offered by the complainant under its marks).
In addition, Respondent has engaged in the practice of
typosquatting. Respondent is taking
advantage of Internet users that are attempting to reach Complainant, but
mistakenly misspelling Complainant’s FINISH LINE mark. The Panel finds that this is further evidence
that Respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii). See LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20,
2007) (concluding that by registering the <microssoft.com> domain name,
the respondent had “engaged in typosquatting, which provides additional
evidence that [the] respondent lacks rights and legitimate interests in the
disputed domain name under Policy ¶ 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain names to divert
Internet customers seeking Complainant’s website to the competitive websites
that resolve from the disputed domain names.
The Panel finds that this use disrupts Complainant’s business, and is
evidence of registration and use in bad faith pursuant to Policy ¶
4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”); 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)).
The Panel infers that Respondent receives click-through fees from the use of the aforementioned hyperlinks. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain name and the resolving website. Therefore, the Panel finds that Respondent’s use of the disputed domain names constitutes 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 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).”).
Lastly, the Respondent has engaged in typosquatting, which constitutes evidence by itself of bad faith registration and use under Policy ¶ 4(a)(iii). See, e.g., Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
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 <finiashline.com>, <finishlini.com>, and <finishlins.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 12, 2010
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