SeaWorld LLC v. Dennis Combs
Claim Number: FA1009001345530
PARTIES
Complainant is SeaWorld LLC (“Complainant”), represented by Andrea Anderson, of Holland & Hart LLP, Colorado, USA. Respondent is Dennis Combs (“Respondent”), Iowa, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <seaworldblog.com>, registered with GoDaddy.com, Inc. (“Registrar”).
PANEL
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.
Dennis A. Foster as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 9, 2010.
On September 9, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <seaworldblog.com> domain name is registered with GoDaddy.com, Inc. and that the Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 10, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 30, 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@seaworldblog.com. Also on September 10, 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.
A timely Response was received and determined to be complete on September 30, 2010.
On October 20, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Dennis A. Foster as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
- Complainant, SeaWorld LLC, is a family entertainment company, headquartered in Orlando Florida. It owns and operates three amusement parks in the United States and has one of the largest wild animal collections in the world. Along with featuring many marine animal shows and displays, the Complainant’s parks also feature numerous exciting rides for its patrons.
- Complainant has been using its SEAWORLD trademark in commerce since at least 1964 and has many United States Patent and Trademark Office (“USPTO”) registrations that incorporate the mark. Complainant has spent millions of dollars advertising and promoting its mark and products, including using several domain names that it owns for that purpose (i.e., <seaworld.com>, <seaworld.org>, <seaworldparksblog.com>, etc.)
- The disputed domain name, <seaworldblog.com>, is confusingly similar to Complainant’s mark. The name incorporates the mark in its entirety and merely adds the top-level domain “.com” and the generic term “blog.”
- Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not and has never been associated or affiliated with Complainant, and Complainant has never authorized Respondent to use Complainant’s SEAWORLD mark.
- There is no evidence to suggest that Respondent, Dennis Combs, has ever been commonly known as the disputed domain name. Respondent is not using the name in connection with a bona fide offering of goods or services, as the name is being used to host a website that features links to third party websites which generate revenue to Respondent on a “click through” basis. Some of said third party links offer family entertainment products and services that compete directly with those offered by Complainant. Such use of the disputed domain name is neither noncommercial nor fair use.
- Respondent registered and is using the disputed domain name in bad faith. Respondent had actual or constructive knowledge of Complainant’s rights in its mark prior to registration of the name. Moreover, Respondent is intentionally deriving commercial gain through Internet user confusion between the disputed domain name and Complainant’s trademark. Respondent owns approximately 318 other domain names that operate on a “click through” basis to generate revenue for Respondent.
B. Respondent
- Respondent registered the disputed domain name as an outlet to discuss the attributes of Complainant’s parks, as Respondent visited one and enjoyed it. Respondent never actually found the time to start a website for this purpose, and has left the name parked with Registrar.
- Respondent never instructed Registrar concerning what to do with the disputed domain name and is completely ignorant as to any website placed at the name. There was never an intent on the part of Respondent to benefit commercially from the name, and Respondent has received no remuneration in connection with it.
- Respondent admits that Complainant’s mark is well known, but that knowledge does not supersede Respondent’s right to free speech. Thus, Respondent has not infringed upon Complainant’s rights in any manner.
FINDINGS
Complainant is a well-established American company that has been offering family entertainment services through its three marine-theme amusement parks for decades. It owns many valid USPTO registrations for its trademarks and service marks, including the marks SEA WORLD (Reg. No. 1195498 issued May 18, 1982) and SEAWORLD (Reg. No. 2815140 issued February 17, 2004).
Respondent registered the disputed domain name, <seaworldblog.com>, on July 14, 2010. The name remains parked with Registrar, who has placed a website on the name that provides links to the websites of third parties, some of whom offer goods and services that compete directly with those offered by Complainant.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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’s possession of valid USPTO registrations for the SEAWORLD mark (Annex 7), satisfies the Panel that Complainant has sufficient rights in that mark for the purposes of Policy paragraph 4(a)(i). See, for example, Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“Complainant asserts that it has registered the METLIFE mark with the United States Patent and Trademark Office…The Panel finds that this trademark registration adequately demonstrates Complainant’s rights in the mark under Policy ¶ 4(a)(i).”); see also Miller Prods. Co. v. Grozinger, FA 823231 (Nat. Arb. Forum Dec. 5, 2006).
The disputed domain name, <seaworldblog.com>, incorporates Complainant’s full mark, SEAWORLD, and adds to it the generic term “blog”, as well as the gTLD “.com”. In the Panel’s view, neither of these additions is sufficient to distinguish materially the name from the mark. Though not identical, the two are confusingly similar. Past UDRP panels have ruled consistently that the addition of a generic term and an obligatory gTLD do not prevent a finding of confusing similarity between a disputed domain name and a valid complainant trademark, and the Panel is in agreement with those rulings. See SeaWorld, Inc. v. Domain (c/o Rebel.com Privacy Service), FA 1299995 (Nat. Arb. Forum Feb. 10, 2010) (“The Panel finds Respondent’s <seaworldparks.com> domain name is confusingly similar to Complainant’s SEA WORLD mark under Policy ¶ 4(a)(i) because none of the alterations to Complainant’s mark sufficiently distinguish the disputed domain name from Complainant’s mark.”); Casio Keisanki Kabushiki Kaisha v. Kim, D2003-0400 (WIPO July 15, 2003) (“The Panel finds the disputed domain name <casioshop.net> to be confusingly similar to the Complainant’s strong and immediately recognizable trademark CASIO…”); see also Gardline Surveys Ltd. v. Domain Finance Ltd., FA 0153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
As reasoned above, the Panel decides that Complainant has proven that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights.
Complainant asserts that it has no affiliation with Respondent and has not authorized Respondent’s use of Complainant’s trademark, SEAWORLD. Moreover, the Panel has determined that the disputed domain name is confusingly similar to that mark. As such, Complainant has made a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Therefore, Respondent must come forward with specific evidence that it does possess such rights and/or interests. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); see also Go Daddy Software, Inc. v. Hadani, D2002-0568 (WIPO Aug. 1, 2002) (“Once a complainant has made this prima facie showing, the burden shifts to the respondent to show that the respondent has a legitimate interest in the domain name.”).
To sustain his claim to rights or legitimate interests in the disputed domain name, Respondent contends that he registered the name in order to create a website that contained information about Complainant’s parks, without the intent to derive revenue from said site. Unfortunately, according to Respondent, he has not had an opportunity to actually take steps toward constructing that noncommercial website. In analyzing Respondent’s contentions, the Panel must note that Respondent has provided no independent corroborating evidence to support them.
Referencing paragraph 4(c) of the Policy, which sets forth three circumstances that could establish Respondent’s rights or legitimate interests in the disputed domain name, the Panel concludes that Respondent’s contentions fail to satisfy any of the three. Since Respondent concedes that he is neither using, nor engaged in any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services, subparagraph 4(c)(i) is inapplicable. Furthermore, Respondent, Dennis Combs, furnished the Panel with no evidence that he is commonly known by the disputed domain name, <seaworldblog.com>, ruling out the application of subparagraph 4(c)(ii). Finally, the Panel cannot credit Respondent with satisfaction of subparagraph 4(c)(iii), because the language of that subparagraph clearly requires that he be “making a legitimate non-commercial or fair use [emphasis added]” of the disputed domain name, not have merely the completely unfulfilled intent to do so.
As a result, the Panel determines that Respondent has failed to rebut Complainant’s prima facie case.
In view of the above, the Panel finds that Complainant has succeeding in showing that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has furnished the Panel with good evidence (Annex 9) that the website hosted at the disputed domain name features hyperlinks to the websites of, among others, third party competitors of Complainant. Respondent counters that Registrar, and not he, selected those links, and that he had no control of the selection process. However, the Panel notes that many prior UDRP panels have held respondents ultimately responsible for the use of their disputed domain names, whether or not they instructed another party as to the nature of the website placed at such names. See, for example, State Farm Mut. Auto. Ins. Co. v. Pompilio, FA 1092410 (Nat. Arb. Forum Nov. 20, 2007) (“As a rule, the owner of a parked domain name does not control the content appearing at the parking site. Nevertheless, it is ultimately Respondent who is responsible for how its domain name is used.”); and Grisoft, s.r.o. v. Original Web Ventures Inc., D2006-1381 (WIPO Mar. 5, 2007) (“The Respondent is ultimately responsible for the content of the website generated by [a third party’s] technology.”).
The Panel finds that the primary purpose of this diversion of Internet users to third party websites is to disrupt Complainant’s business, constituting bad faith registration and use of the disputed domain name under paragraph 4(b)(iii) of the Policy. See Enterprise Rent-A-Car Co. v. Petsumrit, FA 1115177 (Nat. Arb. Forum Jan. 10, 2008) (“The Panel finds that Respondent’s use of the disputed domain name to advertise competing products…constitutes registration and use in bad faith under Policy ¶ 4(b)(iii).”); and National Westminster Bank plc v. 121 Internet c/o Direct Communication, FA 671023 (Nat. Arb. Forum May 16, 2006) (finding bad faith registration and use under paragraph 4(b)(iii), as “Respondent has registered and used the domain name for the primary purpose of disrupting Complainant’s business, because the [disputed] domain name resolves to a website featuring links to Complainant’s competitors...”).
Accordingly, the Panel rules that the disputed domain name was registered and is being used in bad faith.
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <seaworldblog.com> domain name be TRANSFERRED from Respondent to Complainant.
Dennis A. Foster,
Panelist
Dated: November 3, 2010
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