Kansas City Royals Baseball Corporation v. Sonya L. Lopez
Claim Number: FA1005001324037
Complainant is Kansas
City Royals Baseball Corporation (“Complainant”), represented by Richard S. Mandel, of Cowan, Liebowitz & Latman, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <royalsbaseball.com>, registered with Dynadot, LLC.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 11, 2010.
On May 11, 2010, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <royalsbaseball.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 May 12, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 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@royalsbaseball.com. Also on May 12, 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 June 3, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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" 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:
1. Respondent’s <royalsbaseball.com> domain name is confusingly similar to Complainant’s ROYALS mark.
2. Respondent does not have any rights or legitimate interests in the <royalsbaseball.com> domain name.
3. Respondent registered and used the <royalsbaseball.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Kansas City Royals Baseball Corporation, is a Major League Baseball club. Complainant was founded in 1969. Since then Complainant’s baseball team has reached the post-season playoffs a total of seven times, has competed in the American League Championship Series six times, has made two World Series championship appearances and has won one championship title. In addition, Complainant has licensed the ROYALS mark in connection with local and national sponsorships promoting a wide range of entities spanning numerous industries. Complainant also holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the ROYAL mark (e.g., Reg. No. 1,538,005 registered on May 9, 1989).
Respondent, Sonya L. Lopez, registered the disputed <royalsbaseball.com> domain name on March 12, 2008. The disputed domain name resolves to a website featuring links to third-party websites, some of which connect to Complainant’s official website or Complainant’s competitors.
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 asserts rights in the ROYALS mark through its registration of the mark with the USPTO (e.g., Reg. No. 1,538,005 registered on May 9, 1989). The Panel finds this registration sufficiently establishes Complainant’s rights in the ROYALS mark under Policy ¶ 4(a)(i). See 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).”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant contends Respondent’s disputed <royalsbaseball.com> domain name is confusingly similar to its ROYALS mark. Respondent incorporates Complainant’s mark in its entirety in the disputed domain name. Respondent then adds the descriptive term “baseball,” which describes Complainant’s industry, and the generic top-level domain (“gTLD”) “.com” to Complainant’s mark in the disputed domain name. The Panel finds Respondent’s additions do not distinguish the disputed domain name from Complainant’s mark. See Chanel, Inc. v. Cologne Zone, D2000-1809 (WIPO Feb. 22, 2001) (“CHANEL, the salient feature of the Domain Names, is identical to a mark in which Complainant has shown prior rights. The addition of the generic term, “perfumes” is not a distinguishing feature, and in this case seems to increase the likelihood of confusion because it is an apt term for Complainant’s business.”); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark); 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). Therefore, the Panel finds Respondent’s disputed <royalsbaseball.com> domain name is confusingly similar to Complainant’s ROYALS mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie case showing Respondent lacks rights or legitimate interests in the <royalsbaseball.com> domain name. The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests. 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 Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); 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.”). Although Respondent has failed to respond, the Panel will evaluate the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant alleges it is not affiliated with Respondent nor has it given Respondent permission to use its ROYALS mark in a domain name. Furthermore, the WHOIS information lists the registrant of the <royalsbaseball.com> domain name as “Sonya L. Lopez.” Without evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name 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 Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant provides evidence that Respondent’s disputed <royalsbaseball.com> domain name resolves to a website featuring links to third-party websites, some of which compete with Complainant’s business or offer Complainant’s authorized merchandise for sale. The Panel finds Respondent most likely profits from its use of the disputed domain name through the receipt of pay-per-click fees. Therefore, the Panel finds Respondent’s use of a confusingly similar domain name to divert Internet users to its website for commercial gain does not constitute 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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 Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did not constitute 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)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds Respondent’s use of the <royalsbaseball.com> domain name to redirect Internet users to a website that list links to third-party websites, including links to Complainant’s official website and Complainant’s competitors, disrupts Complainant’s business and constitutes registration and use in bad faith 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 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).
Complainant states Respondent uses the disputed <royalsbaseball.com>
domain name to attract Internet users to Respondent’s website for her financial
benefit by creating a likelihood of confusion as to the potential existence of
a relationship, affiliation or other endorsement between Complainant and
Respondent. As previously discussed, the
disputed domain name is confusingly similar to Complainant’s ROYALS mark. Furthermore, Respondent presumably receives
commercial gain in the form of pay-per-click fees through its use of the
disputed domain name. Complainant also
offers evidence that Respondent uses the site to advertise and market ROYALS
baseball tickets in direct competition with authorized ticket sellers. Complainant argues this practice further
compounds the likelihood Internet users will be confused about Complainant’s
affiliation with Respondent. The Panel
agrees and finds these practices provide further evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See
Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006)
(finding that the respondent engaged in bad faith registration and use pursuant
to Policy ¶ 4(b)(iv) 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
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 <royalsbaseball.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: June 10, 2010
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