SeaWorld LLC v. Abaverse c/o David B. Head
Claim Number: FA1004001317132
Complainant is SeaWorld
LLC (“Complainant”), represented by Andrea
Anderson, of Holland & Hart LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <seawrold.org>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 2, 2010.
On April 5, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <seawrold.org> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. 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 6, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 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@seawrold.org. Also on April 6, 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 Terry F. Peppard as sole Panelist in this proceeding.
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" 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant has registered its SEAWORLD trademark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,195,498, issued May 18, 1982).
Complainant has been using the SEAWORLD mark in connection with its amusement parks featuring zoological displays focusing on marine life, and in related advertisements and promotional materials.
Complainant also operates a website resolving from the <seaworld.org> domain name, which is derived from its mark.
Respondent registered the disputed <seawrold.org> domain name on January 15, 2005.
The disputed domain name resolves to a website that closely resembles Complainant’s official website resolving from the <seaworld.org> domain name.
The disputed domain name includes links to third-party websites unrelated to Complainant’s mark as well as to third-party websites displaying adult-oriented content.
Respondent’s <seawrold.org> domain name is confusingly similar to Complainant’s SEAWORLD mark.
Respondent is not commonly known by the disputed domain name.
No license or other authorization has been given by complainant to Respondent to use the SEAWORLD mark.
Respondent does not have any rights to or legitimate interests in the <seawrold.org> domain name.
Internet users searching for information about Complainant’s business will likely be confused by Respondent’s <seawrold.org> domain name as to the possibility of Complainant’s sponsorship of or affiliation with the disputed domain name because it resolves to a website that includes Complainant’s SEAWORLD mark, as well as pictures and descriptions of the business and services related to that mark.
Complainant further asserts that Internet users may become confused
Respondent registered and uses the <seawrold.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of its SEAWORLD trademark with the USPTO is sufficient to establish its rights in the mark pursuant to Policy ¶ 4(a)(i). See Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding that a complainant had registered its mark with national trademark authorities, a panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”); see also UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17, 2007) (holding that a complainant had established rights in its marks for the purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO).
Complainant asserts that the <seawrold.org> domain name is confusingly similar to its SEAWORLD mark. The disputed domain name merely inverts the letters “o” and “r” in the word “world” of Complainant’s mark and adds the top-level domain “.org.” The domain name is therefore confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to a complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to a complainant’s GOOGLE mark and noting that:
The
transposition of two letters does not create a distinct mark capable of
overcoming a claim of confusing similarity, as the result reflects a very
probable typographical error.
See also Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27, 2007):
The
Panel also finds that … [the] addition of a generic top-level domain (“gTLD”)
is irrelevant when conducting a Policy ¶ 4(a)(i)
analysis.
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights to or legitimate interests in the <seawrold.org> domain name. Once Complainant has made out a prima facie case in support of this allegation, the burden to establish that Respondent has rights to or legitimate interests in the disputed domain name shifts to Respondent. 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.
Complainant has established a prima facie case, thus shifting the burden of persuasion to Respondent. Because Respondent has not responded to the Complaint, we may presume that Respondent lacks rights to and legitimate interests in the disputed domain name. See G.D. Searle v Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002):
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).
Nonetheless, we elect to examine the record before us, by reference to the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by observing that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name. Moreover, the WHOIS information for the <seawrold.org> domain name lists the registrant only as “Abaverse c/o David B. Head”, which does not resemble the disputed domain name. Further, Complainant asserts, without objection from Respondent, that no license or other authorization has been given to Respondent to use the SEAWORLD mark. On these facts, we must conclude that Respondent is not commonly known by the disputed domain so as to have demonstrated that it has rights to or legitimate interests in the contested domain name within the meaning of Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name where there was no evidence in the record showing that that respondent was commonly known by the domain name, including the relevant WHOIS information, and where a complainant asserted that it did not authorize or license that respondent’s use of its mark in a domain name); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that a respondent failed to establish rights to or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a complainant’s mark and failed to submit evidence that it is commonly know by the disputed domain).
We also note that Complainant alleges, and Respondent does
not deny, that Respondent’s <seawrold.org> domain name, which is
confusingly similar to Complainant’s mark, resolves to a website which includes
links to third-party websites unrelated to Complainant’s business. We conclude from this that Respondent is not
using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or
for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Golden Bear Int’l, Inc. v.
Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003):
Respondent's use of a domain name confusingly similar to
Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent 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 U.S. Franchise Sys., Inc. v. Howell, FA 152457 (Nat. Arb. Forum May 6, 2003) (holding that a respondent’s use of a complainant’s mark and the goodwill surrounding that mark as a means of attracting Internet users to an unrelated business website was not a bona fide offering of goods or services under the Policy).
Further, Complainant Respondent’s attempt to pass itself off
as Complainant by imitating Complainant’s website via the contested <seawrold.org>
domain name does not reflect that Respondent has rights to or legitimate
interests in the disputed domain name under Policy ¶ 4(a)(ii). See Dream Horse Classifieds v. Mosley, FA
381256 (Nat. Arb. Forum Feb. 8, 2005) (finding that a respondent’s attempt to
pass itself off as a complainant by implementing a color scheme identical to that
complainant’s was evidence that respondent lacks rights to and legitimate
interests in a disputed domain name pursuant to Policy ¶ 4(a)(ii)); see also Am. Int’l Group, Inc. v. Busby, FA
156251 (Nat. Arb. Forum May 30, 2003) (finding that a respondent’s attempts to
pass itself off as a complainant online, in a blatant unauthorized use of that
complainant’s mark, was evidence that that respondent had no rights to or
legitimate interests in a disputed domain name).
Finally under this head of the Complaint, Complainant contends that Respondent’s <seawrold.org> domain name resolves to a website that contains adult-oriented content and links to websites with adult-oriented content. Respondent does not contest this assertion. We may presume from the circumstances presented that Respondent profits financially from this behavior by means of click-through or similar fees. Respondent’s use of the <seawrold.org> domain name to display adult-oriented content for profit does not reflect that it has any rights to or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Paws, Inc. v. Zuccarini, FA 125368 (Nat. Arb. Forum Nov. 15, 2002) (holding that the use of a domain name that is confusingly similar to an established mark to divert Internet users to an adult-oriented website “tarnishes Complainant’s mark”); see also Am. Online, Inc. v. Bates, FA 192595 (Nat. Arb. Forum Oct. 7, 2003):
Attempts
to commercially benefit from a domain name that is confusingly similar to
another's mark by linking the domain name to an adult-oriented
website [is] evidence that the registrant lacks rights or legitimate interests
in the domain name.
The Panel thus finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant asserts, and Respondent does not deny, that Internet users searching for information about Complainant’s business will likely be confused by Respondent’s <seawrold.org> domain name as to the possibility of Complainant’s sponsorship of or affiliation with the disputed domain name because it resolves to a website that includes Complainant’s mark, as well as pictures and descriptions of the business and services related to Complainant’s mark. Respondent likely profits from this confusion by receiving click-through or similar fees from visits by Internet users to the links displayed on the resolving site. We conclude from this that Respondent’s use of the <seawrold.org> domain name evidences bad faith registration and use of the contested domain name pursuant to 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 a respondent diverted Internet users searching for a complainant to its own website, likely profiting in the process); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name there in question was obviously connected with a complainant’s marks, thus creating a likelihood of confusion among Internet users for Respondent’s commercial gain).
Respondent is evidently using the <seawrold.org>
domain name to pass itself off as Complainant because Respondent’s domain name
resolves to a website that closely resembles Complainant’s official website and
displays duplications of Complainant’s SEAWORLD mark. Respondent’s attempt to pass itself off as
Complainant in this manner constitutes evidence of bad faith registration and use
of the contested domain name pursuant to Policy ¶ 4(a)(iii).
See Monsanto Co. v.
Decepticons, FA 101536 (Nat. Arb. Forum
Dec. 18, 2001) (finding that a respondent's use of <monsantos.com> to
misrepresent itself as a complainant and to provide misleading information
to the public supported a finding of bad faith); see also Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum Mar.
13, 2002) (finding that, where a copy of a complainant’s website was used at a
contested domain name, a respondent’s behavior evidenced bad faith registration
and use of the domain name).
Finally, the website resolving from the disputed domain name also contains adult-oriented content and links to websites with adult-oriented content. Respondent’s registration and use of the <seawrold.org> domain name in this manner tarnishes Complainant’s mark and further demonstrates bad faith registration and use of the domain pursuant to Policy ¶ 4(a)(iii). See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (finding that a respondent registered the domain name <holidayinnakron.com> and linked it to an adult-oriented website, and concluding that:
whatever the
motivation of Respondent, the diversion of the domain name to a[n
adult-oriented] site is itself certainly consistent with the finding that the
Domain Name was registered and is being used in bad faith.
See also Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that a respondent’s tarnishing use of disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith).
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <seawrold.org> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 5, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum