SeaWorld LLC v. Milad Chater
Claim Number: FA1101001368600
Complainant is SeaWorld LLC (“Complainant”), represented by Andrea Anderson of Holland & Hart LLP, Colorado, USA. Respondent is Milad Chater (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tickets2seaworld.com>, registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 20, 2011; the National Arbitration Forum received payment on January 20, 2011.
On January 20, 2011, Melbourne IT, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <tickets2seaworld.com> domain name is registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne IT, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne IT, Ltd. d/b/a Internet Names Worldwide 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 January 27, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 2011 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@tickets2seaworld.com. Also on January 27, 2011, 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 March 30, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <tickets2seaworld.com> domain name is confusingly similar to Complainant’s SEAWORLD.
2. Respondent does not have any rights or legitimate interests in the <tickets2seaworld.com> domain name.
3. Respondent registered and used the <tickets2seaworld.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SeaWorld LLC, is a family entertainment company that operates amusement parks in Florida, Texas, and California. Complainant owns trademark registrations for the SEA WORLD mark with the United States Patent and Trademark Office (“USPTO”), the Canadian Intellectual Property Office (“CIPO”), and the European Union Office of Harmonization for the Internal Market (“OHIM”), among other trademark offices around the world:
USPTO
Reg. No. 1,195,498 issued May 18, 1982;
Reg. No. 1,702,218 issued July 21, 1992;
Reg. No. 1,811,840 issued December 21, 1993;
Reg. No. 1,811,881 issued December 21, 1993
CIPO
Reg. No. 283,452 issued September 23, 1983;
Reg. No. 202,979 issued November 8, 1976;
Reg. No. 436,804 issued December 9, 1994; and
OHIM
Reg. No. 103,523 issued June 23, 2000.
Respondent, Milad Chater, registered the <tickets2seaworld.com> domain name on October 12, 2004. The disputed domain name resolves to a website offering tickets to Complainant’s entertainment and amusement parks as well as tickets to numerous other third-party amusement parks that compete with Complainant.
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 owns trademark registrations for the SEA WORLD mark with the USPTO, the CIPO, and the OHIM, among other trademark offices around the world:
USPTO
Reg. No. 1,195,498 issued May 18, 1982;
Reg. No. 1,702,218 issued July 21, 1992;
Reg. No. 1,811,840 issued December 21, 1993;
Reg. No. 1,811,881 issued December 21, 1993
CIPO
Reg. No. 283,452 issued September 23, 1983;
Reg. No. 202,979 issued November 8, 1976;
Reg. No. 436,804 issued December 9, 1994; and
OHIM
Reg. No. 103,523 issued June 23, 2000.
The Panel finds this evidence of trademark registration around the world demonstrates that Complainant has proven its rights in the SEA WORLD mark for the purposes of Policy ¶ 4(a)(i). See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Complainant argues that Respondent’s <tickets2seaworld.com> domain name is confusingly similar to Complainant’s SEA WORLD mark because the only differences are the addition of the descriptive term “tickets” and the numeral “2,” the deletion of the space between the terms, and the attachment of the generic top-level domain (“gTLD”) “.com.” The Panel finds that adding generic terms or numerals to Complainant’s mark does not sufficiently affect the essential nature of Complainant’s mark to prevent a finding of confusing similarity. See America Online, Inc. v. garybush co uk, FA 360612 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s domain name is confusingly similar to Complainant’s AOL mark because the disputed domain name incorporates the mark with the mere addition of the nondistinctive number ‘0.’ The addition of the number ‘0’ is insufficient to distinguish the domain name from Complainant’s mark.”); see also American Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). The Panel also concludes that neither deleting the space between terms nor attaching a gTLD differentiates the disputed domain name as these are changes dictated by the limitations of domain name formation. See American 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.”). The Panel accordingly finds that Respondent’s <tickets2seaworld.com> domain name is confusingly similar to Complainant’s SEA WORLD mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) is met.
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain name. In accordance with Policy ¶ 4(a)(ii), Complainant has presented a sufficient prima facie case against Respondent to transfer the burden to Respondent to demonstrate its rights and legitimate interests. 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.”). As a result of Respondent’s failure to respond to the Complaint, however, the Panel may infer that Complainant’s allegations are true and that Respondent possesses no rights or legitimate interests in the disputed domain name. See American 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.”); see also Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-020015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”). In the interest of making a complete determination on Respondent’s rights and legitimate interests, however, the Panel elects to consider the evidence presented according to the Policy ¶ 4(c) factors.
Complainant asserts that Respondent is not commonly known by the <tickets2seaworld.com> domain name and is not authorized to use Complainant’s mark in a domain name or otherwise without prior approval of Complainant. Complainant states that it has never given Respondent such approval to use the SEA WORLD mark. The WHOIS information for the <tickets2seaworld.com> domain name indicates that “Milad Chater” is the registrant. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name and accordingly lacks rights and legitimate interests in the <tickets2seaworld.com> domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the disputed domain name); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant contends that Respondent’s <tickets2seaworld.com> domain name resolves to a website offering tickets to Complainant’s entertainment and amusement parks, as well as other amusement parks in competition with Complainant. The Panel finds that such unauthorized commercial offering of goods, both of Complainant and Complainant’s competitors, does not comport with the requirements of a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Pitney Bowes Inc. v. Ostanik, D2000-1611 (WIPO Jan. 24, 2001) (finding no rights or legitimate interests in the <pitneybowe.com> domain name where the respondent purports to resell original Pitney Bowes equipment on its website, as well as goods of other competitors of the complainant).
Complainant alleges that Respondent’s <tickets2seaworld.com> domain name redirects Internet users seeking Complainant to a website offering tickets both to Complainant’s amusement parks and to the attractions of competitors. The Panel finds that advertising or promoting competing goods under Complainant’s mark disrupts Complainant’s business by diverting potential customers away from Complainant. The Panel finds this disruption to be evidence of bad faith registration and use according to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Complainant argues that Respondent includes Complainant’s mark in the <tickets2seaworld.com> domain name to cause confusion as to Complainant’s sponsorship of or affiliation with the resolving website. Complainant asserts that Respondent creates this confusion in order to attract Internet users and commercially profit from increased tickets sales correlating with the increased traffic to the site. The Panel finds that this behavior reveals bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
The Panel finds Policy ¶ 4(a)(iii) has 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 <tickets2seaworld.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 4, 2011
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