SeaWorld LLC v. Above.com Domain Privacy
Claim Number: FA1101001369247
Complainant is SeaWorld LLC (“Complainant”), represented by Tyler Davis of Holland & Hart LLP, Colorado, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <seaworldcamp.com>, registered with Above.com Pty Ltd.
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 January 24, 2011; the National Arbitration Forum received payment January 24, 2011.
On January 26, 2011, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <seaworldcamp.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. verified that Respondent is bound by the Above.com Pty Ltd. registration agreement and thereby has agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 1, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 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@seaworldcamp.com. Also on February 1, 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 February 25, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson 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 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. The domain name that Respondent registered, <seaworldcamp.com>, is confusingly similar to Complainant’s CAMP SEA WORLD mark.
2. Respondent has no rights to or legitimate interests in the <seaworldcamp.com> domain name.
3. Respondent registered and used the <seaworldcamp.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, SeaWorld LLC, uses the CAMP SEA WORLD mark in connection with amusement parks and related services. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CAMP SEA WORLD mark (e.g., Reg. No. 1,780,901 issued July 6, 1979).
Respondent registered the <seaworldcamp.com> domain name May 15, 2008. The disputed domain name resolves to a directory website that provides hyperlinks to third-party websites, some of 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."
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 to 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 CAMP SEA WORLD mark through its numerous registrations of the mark with the USPTO (e.g., Reg. No. 1,780,901 issued July 6, 1979). The Panel finds that these trademark registrations sufficiently prove Complainant’s rights in the 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.”). The Panel further holds that it is irrelevant whether Complainant holds trademark registrations for the mark with the trademark authority in the country in which Respondent resides. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant contends that Respondent’s <seaworldcamp.com> domain name is confusingly similar to its CAMP SEA WORLD mark. Respondent transposes the terms in Complainant’s mark and then omits the spaces between the terms in the mark in the disputed domain name. In addition, Respondent affixes the generic top-level domain (“gTLD”) “.com” to Complainant’s mark in the disputed domain name. The Panel finds that Respondent’s changes fail to sufficiently distinguish its domain name from Complainant’s mark. See Reed Elsevier Props. Inc. v. Weekly Publishers, FA 151536 (Nat. Arb. Forum May 5, 2003) (“Inverting or transposing words in a trademark is not sufficient to avoid confusing similarity because the two words create the same commercial impression and meaning.”); see also NCRAS Mgmt., LP v. Cupcake City, D2000-1803 (WIPO Feb. 26, 2001) (finding the domain name <nationalrentalcar.com> confusingly similar to the mark NATIONAL CAR RENTAL and holding that “merely inverting the terms of a mark . . . is quite insufficient to dispel consumer confusion; the mark and the resulting domain name are simply too similar to each other”); see also 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 Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
Therefore, the Panel finds that Respondent’s disputed <seaworldcamp.com> domain name is confusingly similar to Complainant’s CAMP SEA WORLD mark pursuant to Policy ¶ 4(a)(i). Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant must first make a prima facie case showing that Respondent lacks rights or legitimate interests in the <seaworldcamp.com> domain name under Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove that it does have such rights to or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or 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, although Respondent failed to submit a Response, this Panel still examines the record to determine whether evidence there suggests that Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that it has never authorized Respondent to use its CAMP SEA
WORLD mark. Furthermore, the WHOIS information does not indicate that
Respondent is commonly known by the <seaworldcamp.com> domain
name. Therefore, the Panel finds that the evidence in the record indicates
that Respondent is not commonly known by the <seaworldcamp.com> domain
name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also 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).
Complainant submits a screen shot of the website resolving from the <seaworldcamp.com> domain name. This image shows a directory website that displays hyperlinks with titles like “Orlando Seaworld Discount,” “Sea World Ticket Coupons,” “Sea World Tickets,” and “Swim with Dolphins Miami.” The Panel presumes that Respondent profits from its use of the disputed domain name through the receipt of pay-per-click fees. Therefore, based on the evidence in the record, the Panel finds that Respondent uses the disputed domain name to resolve to a pay-per-click website that provides hyperlinks for Complainant’s competitors. Accordingly, the Panel holds that Respondent does not use the disputed domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) and does not use it for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
The Panel finds that the <seaworldcamp.com> domain name redirects Internet users seeking Complainant’s business to a website that provides hyperlinks to Complainant’s competitors. As a result, the Panel finds that Respondent’s domain name disrupts Complainant’s business, which supports findings 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
As previously discussed, Respondent most likely uses the disputed domain name to profit from pay-per-click fees. Additionally, the <seaworldcamp.com> domain name is confusingly similar to Complainant’s CAMP SEA WORLD mark. Based on the evidence in the record, the Panel concludes that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s CAMP SEA WORLD mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Accordingly, the Panel finds that this behavior provides further evidence of registration and use in 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 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 name 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 <seaworldcamp.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 9, 2011.
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