The Finish Line, Inc. v. Rampe Purda
Claim Number: FA1011001359383
Complainant is The Finish Line, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Rampe Purda (“Respondent”), Finland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fimishline.com>, registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 18, 2010; the National Arbitration Forum received payment on November 18, 2010. The Complaint was submitted in both Finnish and English.
On November 19, 2010, Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com confirmed by e-mail to the National Arbitration Forum that the <fimishline.com> domain name is registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com and that Respondent is the current registrant of the names. Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com has verified that Respondent is bound by the Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 30, 2010, the Forum served the Finnish language Complaint and all Annexes, including a Finnish language Written Notice of the Complaint, setting a deadline of December 20, 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@fimishline.com. Also on November 30, 2010, the Finnish language 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 December 22, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <fimishline.com> domain name is confusingly similar to Complainant’s FINISH LINE mark.
2. Respondent does not have any rights or legitimate interests in the <fimishline.com> domain name.
3. Respondent registered and used the <fimishline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Finish Line, Inc., owns the exclusive rights to its FINISH LINE mark which it uses in connection with its retail business, specializing in athletic footwear and apparel. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its FINISH LINE mark (e.g., Reg. No. 1,960,883 issued March 5, 1996).
Respondent, Rampe Purda, registered the <fimishline.com> domain name on April 15, 2007. The disputed domain name resolves to a website which features third-party, click-through links which 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."
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 FINISH LINE mark. Earlier panels contend that trademark registrations with a federal trademark authority are sufficient to establish rights in a mark, regardless of the country in which Respondent resides. 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 Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). Complainant holds multiple trademark registrations with the USPTO for its FINISH LINE mark (e.g., Reg. No. 1,960,883 issued March 5, 1996). Therefore, the Panel finds that Complainant has established rights in the FINISH LINE mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <fimishline.com> domain name is confusingly similar to Complainant’s FINISH LINE mark. The disputed domain name contains a misspelled version of Complainant’s mark by substituting the letter ‘m’ for the letter ‘n’ in FINISH, removes the space in between the words of Complainant’s mark, and adds the generic top-level domain (“gTLD”) “.com.” Earlier panels have asserted that the addition of a gTLD and the removal of a space are irrelevant in distinguishing a disputed domain name from a complainant’s mark. Previous panels have also found that a disputed domain name which misspells a complainant’s famous mark is rendered confusingly similar to the mark in question. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). Accordingly, the Panel finds Respondent’s <fimishline.com> domain name to be confusingly similar to Complainant’s FINISH LINE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) is satisfied.
Complainant argues that Respondent has no rights or legitimate interests in the <fimishline.com> domain name. Once a complainant makes a prima facie case in support of its allegations, the burden then shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). In this instance, the Panel finds Complainant has made a prima facie case. Because Respondent has failed to respond to the complaint, the Panel may decide that Respondent lacks rights and legitimate interests in the disputed domain name. 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 Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
When there is no information being set forth in the record to indicate that a respondent is commonly known by a disputed domain name, the Panel may find such as evidence that said respondent lacks rights and legitimate interests in the disputed domain. Complainant asserts that Respondent has not been authorized to use the FINISH LINE mark. The WHOIS information identifies the domain name registrant as “Rampe Purda.” There is no other indication that Respondent has been commonly known by the <fimishline.com> domain name. Therefore, the Panel finds that Respondent has not established any rights or legitimate interests 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 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 disputed domain name to display third-party links which resolve to sites that are in competition with Complainant’s business. The Panel finds this competing use 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 Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Complainant argues that Respondent takes advantage of a common misspelling or mistyping of Complainant’s FINISH LINE mark. Respondent’s <fimishline.com> domain name differs from Complainant’s mark by only one letter. The Panel finds this to be evidence of typosquatting and a further indication that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
The Panel finds Policy ¶ 4(a)(ii) is satisfied.
Complainant alleges Respondent’s use of the <fimishline.com>domain name is part of a pattern of bad faith use and registration. Respondent has been the focus of numerous other UDRP proceedings in which the disputed domain names were transferred from Respondent to the complainants. See AOL Inc. v. Rampe Purda – NA, FA 1330828 (Nat. Arb. Forum July 29, 2010); see also Hewlett-Packard Dev. Co., L.P. v. Rampe Purda – NA, FA 1298005 (Nat. Arb. Forum Feb. 2, 2010). The Panel concludes that this constitutes a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)).
Respondent uses the disputed domain names to offer links to third-party websites which compete with Complainant. The Panel finds this to be evidence of 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).
Complainant argues that Respondent likely profits from the click-through links displayed at the disputed domain name. Internet users, searching for Complainant’s products, may become confused as to any sponsorship between Respondent and Complainant. Respondent likely profits from this confusion when Internet users click-through the links on the <fimishline.com> domain. The Panel finds Respondent’s registration and use of the disputed domain name constitutes bad faith pursuant to 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 Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Complainant alleges that Respondent has engaged in typosquatting by redirecting Internet users who likely reach Respondent’s website when they enter a mistyping of Complainant’s mark. The Panel finds this to constitute bad faith registration and use under Policy ¶ 4(a)(iii). See 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); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
The Panel finds Policy ¶ 4(a)(iii) is 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 <fimishline.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: December 27, 2010
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