Claim Number: FA1006001332770
Complainant is SeaWorld
Parks & Entertainment, LLC (“Complainant”), represented by Andrea Anderson, of Holland & Hart LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <busch-garden.com> and <busch-garden.net>, registered with eNom, Inc.
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 June 30, 2010.
On June 30, 2010, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <busch-garden.com> and <busch-garden.net> domain names are registered with eNom, Inc. and that Respondent is the current registrant of the names. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 July 2, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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@busch-garden.com and postmaster@busch-garden.net by e-mail. Also on July 2, 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 July 28, 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 "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
<busch-garden.com> and <busch-garden.net>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <busch-garden.com> and <busch-garden.net> domain names.
3. Respondent registered and used the <busch-garden.com> and <busch-garden.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SeaWorld Parks & Entertainment, LLC, owns
two family entertainment and amusement parks under the
Respondent, Speedeenames.com c/o Troy Rushton, registered
the <busch-garden.com> and
<busch-garden.net> domain names on April 1, 2010 and April
4, 2010, respectively. Respondent’s
disputed domain names resolve to websites that display various third-party
links to
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 has submitted evidence that it owns numerous
trademark registrations with the USPTO for its
Complainant contends that the <busch-garden.com> and <busch-garden.net>
domain names are confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant requests that the Panel find that Respondent does not have rights and legitimate interests in the <busch-garden.com> and <busch-garden.net> domain names under Policy ¶ 4(a)(ii). However, Complainant is required to produce a prima facie case in support of its allegations that Respondent lacks rights and legitimate interests in the domain names. Upon Complainant’s production of a prima facie case the burden of proof shifts to Respondent to provide the Panel with evidence of its rights and legitimate interests in the domain names. See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”). The Panel finds that the burden of proof has properly transferred to Respondent because Complainant has satisfied its requirements under Policy ¶ 4(a)(ii). Due to Respondent’s failure to respond to these proceedings the Panel assumes that the allegations within the Complainant are true, unless clearly contradicted by the evidence on record. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). However, the Panel will evaluate the evidence on record to determine if Respondent possesses rights and legitimate interests in the <busch-garden.com> and <busch-garden.net> domain names pursuant to Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by the <busch-garden.com> and <busch-garden.net> domain names and Respondent has not conducted any business under the domain names. Further, Complainant asserts that it has never authorized or licensed Respondent to use its mark in any way and that Respondent is not associated or affiliated with Complainant’s company. The WHOIS information for the disputed domain names identifies “Speedeenames.com c/o Troy Rushton” as the registrant and Respondent failed to produce any evidence showing it is commonly known by the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the <busch-garden.com> and <busch-garden.net> domain names pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); 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 argues that Respondent is using the disputed
domain names to maintain a website that displays various third-party links to
websites unrelated to Complainant’s amusement park business as well as links to
third-parties <ebay.com> and <amazon.com> where Complainant’s
products are being sold. Complainant
contends that previous panels have held that appropriating another’s trademark
to offer advertisements and links to unrelated websites, presumably to receive
advertising revenue and referral fees for each diverted Internet user, does not
establish Respondent’s rights or legitimate interests in a domain name. The Panel agrees and finds that Respondent’s
use of the <busch-garden.com> and <busch-garden.net> domain names to redirect
Internet users to websites unrelated to Complainant’s amusement park company,
presumably for financial gain, is 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
Constellation Wines
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the disputed domain name redirect Internet users to Complainant’s products being sold at the third-party websites of <ebay.com> and <amazon.com>. Further, Respondent’s websites feature a blog and writing about Complainant’s theme parks, of which Complainant does not have any control over the content. The Panel finds that Respondent’s use of the disputed domain names is evidence that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business); see also Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent’s <busch-garden.com> and <busch-garden.net>
domain names resolve to websites that feature various third-party links to
websites and businesses selling Complainant’s goods as well as to businesses that are unrelated to Complainant’s family entertainment and
amusement parks. Presumably Respondent
receives click-through or affiliate fees from the businesses advertised and
linked-to on its website. Therefore, the
Panel finds that absent evidence from Respondent indicating otherwise, that
Respondent registered and is using the domain names in bad faith under Policy ¶
4(b)(iv). See T-Mobile
USA, Inc. v. utahhealth, FA
697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of
a domain name confusingly similar to a complainant’s mark to direct Internet
traffic to a commercial “links page” in order to profit from click-through fees
or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also The Ass’n of Junior Leagues
Int’l Inc. v. This Domain Name My Be For
The Panel finds that Policy ¶ 4(b)(iv) 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 <busch-garden.com> and <busch-garden.net> domain names be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: August 6, 2010
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