Little League Baseball, Inc. v. Joseph Scharrer
Claim Number: FA1008001343680
Complainant is Little League Baseball, Inc. (“Complainant”), represented by Todd D. Williams of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is Joseph Scharrer (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org>, registered with GoDaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically August 27, 2010.
On August 31, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 1, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@tricitylittleleague.net, postmaster@tricitylittleleague.info, and postmaster@tricitylittleleague.org by e-mail. Also on September 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 October 5, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain names that Respondent registered, <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> are confusingly similar to Complainant’s LITTLE LEAGUE mark.
2. Respondent has no rights to or legitimate interests in the <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names.
3. Respondent registered and used the <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Little League Baseball, Inc., holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the LITTLE LEAGUE mark (e.g., Reg. No. 1,049,641 registered October 5, 1976). Complainant uses the LITTLE LEAGUE mark to identify its goods and services in a variety of communications media, including via its website resolving from the <littleleague.org> domain name.
Respondent, Joseph Scharrer, registered the <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names June 11, 2010. The disputed domain names resolve to parked websites that provide hyperlinks to third-party websites that compete with Complainant’s business.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 claims rights in the LITTLE LEAGUE mark through its registrations of the mark with the USPTO (e.g., Reg. No. 1,049,641 registered October 5, 1976). The Panel finds that these trademark registrations sufficiently prove Complainant’s rights in the LITTLE LEAGUE mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); 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 <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names are confusingly similar to its LITTLE LEAGUE mark. Respondent replicates Complainant’s mark in the disputed domain names and merely omits the spaces between the words in the mark. Respondent also attaches the geographic phrase “tri city” to Complainant’s mark in each of the disputed domain names. Finally, Respondent affixes the generic top-level domains (“gTLDs”) “.net,” “.info,” and “.org” to Complainant’s mark in the disputed domain names. The Panel finds that these alterations and additions do not sufficiently distinguish Respondent’s domain names from Complainant’s mark. See Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Nat. Arb. Forum Feb. 19, 2003) (“Punctuation and spaces between words are not significant in determining the similarity of a domain name and a mark because punctuation and spaces are not reproducible in a domain name.”); see also AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000) (finding that the <axachinaregion.com> domain name “is confusingly similar to the Complainant's trade mark ‘AXA’” because “common geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Therefore, the Panel finds Respondent’s <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names are confusingly similar to Complainant’s LITTLE LEAGUE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant must first make a prima facie case showing that Respondent lacks rights and legitimate interests in the <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names under Policy ¶ 4(a)(ii). Once Complainant makes a prima facie case to support its allegations, the burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights and 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 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.”).
However, this Panel still evaluates the record to determine whether evidence there suggests that Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant asserts that it has never authorized or permitted Respondent to use its LITTLE LEAGUE mark in a domain name. Furthermore, the WHOIS information lists “Joseph Scharrer” as the registrant of the disputed domain names, which the Panel finds is not similar to the <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names. Without evidence to the contrary, the Panel finds that Complainant’s assertions combined with the WHOIS information suggest that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See 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); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant submits into evidence a screen shot of the websites resolving from Respondent’s <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names. These images show parked websites that display hyperlinks that redirect Internet users to third-party websites that compete with Complainant’s business. The hyperlinks include titles like “Little League Baseball,” “Little League Banners,” and “Little League WSB10 Cheat.” The Panel presumes that Respondent profits from its use of the disputed domain names through the receipt of referral fees. Therefore, the Panel finds that Respondent is not using the disputed domain names to make 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 Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding bad faith registration and use even where the “respondent [was] adamant that he [was] not receiving click-through referral fees generated from the websites at which the Disputed Domains [were] ‘parked.’ …for a number of reasons, the panel [found] that it [was] irrelevant whether or not respondent [was] personally receiving any of those click-through referral fees… the key fact here is that respondent, in collaboration with the domain parking service is exploiting complainant’s good will.”); see also 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 ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
The Panel finds that Respondent has no rights or interests in the disputed domain names; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
The Panel finds that Respondent’s disputed domain names resolve to websites that list hyperlinks that redirect Internet users to third-party websites that compete with Complainant’s business. Accordingly, the Panel finds that Respondent’s <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names disrupt Complainant’s business, which is evidence of registration and use in bad faith under 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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
As previously discussed, the Panel also finds that Respondent uses confusingly similar domain names to profit from referral fees. Thus, the Panel finds that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s LITTLE LEAGUE mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Therefore, the Panel finds that this behavior also supports findings of 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 MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
The Panel finds that Respondent registered and used the disputed domain names in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tricitylittleleague.net>, <tricitylittleleague.info>, and <tricitylittleleague.org> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: October 18, 2010.
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