The Finish Line, Inc. v. George Tetreault
Claim Number: FA1008001343689
Complainant is The Finish Line, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is George Tetreault (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <finishlin.com>, registered with MONIKER ONLINE SERVICES, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 27, 2010.
On August 31, 2010, MONIKER ONLINE SERVICES, INC, confirmed by e-mail to the National Arbitration Forum that the <finishlin.com> domain name is registered with MONIKER ONLINE SERVICES, INC, and that Respondent is the current registrant of the name. MONIKER ONLINE SERVICES, INC, has verified that Respondent is bound by the MONIKER ONLINE SERVICES, 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 September 8, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 28, 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@finishlin.com by e-mail. Also on September 8, 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 November 13, 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 (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 <finishlin.com> domain name is confusingly similar to Complainant’s FINISH LINE mark.
2. Respondent does not have any rights or legitimate interests in the <finishlin.com> domain name.
3. Respondent registered and used the <finishlin.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Finish Line, Inc., was founded in 1982 and has its principal place of business in Indianapolis, Indiana. Complainant is a national retailer with over 700 stores in 47 states and can be found online at <finishline.com>. Complainant uses its FINISH LINE mark for retail stores and on-line stores featuring clothing, footwear, and sporting goods and accessories. Complainant holds multiple trademark registrations for its FINISH LINE mark with United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,772,105 issued May 18, 1993).
Respondent, George Tetreault, registered the <finishlin.com> domain name on September 9, 2002. The disputed domain name resolves to a website featuring a hyperlink directory that includes hyperlinks to Complainant’s competitors in the footwear and sporting-goods industries.
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 established rights in the FINISH LINE mark through registration with the USPTO. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); 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.”).
Respondent’s <finishlin.com> domain name is confusingly similar to Complainant’s FINISH LINE mark. The disputed domain name differs from Complainant’s mark only by the deletion of one character, the deletion of a space, and the addition of the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of a gTLD fails to properly distinguish the disputed domain name from Complainant’s mark. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel finds that the deletion of the letter “e” fails to properly distinguish the disputed domain name from Complainant’s mark. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”). The Panel finds that the deletion of a space fails to properly distinguish the disputed domain name from Complainant’s mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i). Thus, the Panel concludes that Respondent’s <finishlin.com> is confusingly similar to Complainant’s FINISH LINE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been established.
Complainant alleges that Respondent lacks rights and legitimate interests in the <finishlin.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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.”). The Panel finds that Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have legitimate rights or interests in the <finishlin.com> domain name. See 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, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by the <finishlin.com> domain name. Complainant argues that Respondent is not sponsored by, or legitimately affiliated with, Complainant in any way. Complainant states that Respondent does not have permission to use Complainant’s mark in a domain name. The Panel finds no evidence in the record that would provide a basis for finding that Respondent is commonly known by the disputed domain name. The WHOIS information identifies Respondent as “George Tetreault,” which is not similar to the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <finishlin.com> domain name under the 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 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).
Respondent uses the <finishlin.com> domain name to redirect Internet users to a website containing generic hyperlinks to websites, some of which are in direct competition with Complainant’s sporting-goods business. Respondent likely receives pay-per-click fees from these websites. The Panel find that Respondent’s use of a confusingly similar disputed domain name to operate a website featuring links to Complainant’s competitors is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4 (c)(iii). See 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)); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a confusingly similar domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in direct competition with a complainant, 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)).
Respondent’s disputed domain name <finishlin.com> includes only Complainant’s mark while deleting one letter to make a typographical error. Complainant argues that the typographical error in the disputed domain name capitalizes on Internet users making common typing errors by redirecting users to Respondent’s website, commonly known as typosquatting. The Panel finds that Respondent’s registration of the disputed domain name is evidence that Respondent lacks rights or legitimate interests under Policy ¶ 4(a)(ii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet users to a search engine webpage, and failed to respond to the complaint).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <finishlin.com> domain names redirects Internet users to a website featuring a directory of hyperlinks, some of which are related directly to Complainant’s business. Respondent’s use of the disputed domain name disrupts its business because Internet users intending to purchase the sporting-goods or related accessories from Complainant may purchase the same products from a competitor as a result of Respondent’s use of the disputed domain name. The Panel finds that Respondent’s use of the <finishlin.com> domain name disrupts Complainant’s sporting-goods business, which constitutes bad faith registration and use 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 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)(iii) 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).
The Panel infers that Respondent receives pay-per-click fees from the previously mentioned hyperlinked websites. Internet users searching for Complainant may find Respondent’s website because of Respondent’s use of a confusingly similar disputed domain name. Internet users may become confused as to Complainant’s sponsorship and affiliation with the disputed domain name, redirecting website, and featured hyperlinks. Respondent attempts to profit off this confusion through pay-per-click fees. The Panel finds that Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See 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).”); see also 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)
Respondent’s disputed domain name <finishlin.com> includes only Complainant’s mark while deleting one letter to make a typographical error. Complainant argues that the typographical error in the disputed domain name capitalizes on internet users making common typing errors by redirecting users to Respondent’s website. The Panel finds that Respondent’s use of the disputed domain name is evidence of bad faith under Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”); 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).
The Panel finds the elements of Policy ¶ 4(a)(iii) have been met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <finishlin.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 19, 2010
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