JumpSport, Inc. v. WebContents, Inc. (www.WebContents.com) c/o Domain Management
Claim Number: FA1104001381422
Complainant is JumpSport, Inc. (“Complainant”), represented by Kevin M. Hayes of Klarquist Sparkman, LLP, Oregon, USA. Respondent is WebContents, Inc. (www.WebContents.com) c/o Domain Management (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jumpsports.com>, registered with DOTSTER.
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.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 31, 2011; the National Arbitration Forum received payment on April 1, 2011.
On April 1, 2011, DOTSTER confirmed by e-mail to the National Arbitration Forum that the <jumpsports.com> domain name is registered with DOTSTER and that Respondent is the current registrant of the name. DOTSTER has verified that Respondent is bound by the DOTSTER 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 April 4, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 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@jumpsports.com. Also on April 4, 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 April 27, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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:
FACTUAL AND LEGAL GROUNDS
Complainant’s ownership of its name and its JUMPSPORT marks for trampoline related goods and services is beyond dispute. Respondent is a recidivist cybersquatter that has registered and used a typo of Complainant’s marks in bad faith.
In this regard, there can be no genuine dispute that the domain name at issue, JumpSports.com, is confusingly similar to Complainant’s name and JUMPSPORT marks. The disputed domain merely pluralizes Complainant’s name and marks. Respondent also uses the domain to display a website advertising competing trampoline related goods and services as shown below:
[graphic omitted]
This registration and use of such a typo-squat domain name shows Respondent’s bad faith attempt to benefit from Complainant’s name and reputation. Respondent’s bad faith is further evidenced by its status as a recidivist violator of the UDRP.
Accordingly, Complainant brings this Complaint on the following factual and legal grounds. [ICANN Rule 3(b)(ix); NAF Supp. Rule 4(a)]
[A.] The Disputed Domain Name Is Based On And Is Confusingly Similar To Complainant’s Name And JUMPSPORT Marks
1. JumpSport’s Rights In Its JUMPSPORT Marks Are Shown By Its Long History Of Use And Its Registrations For Its Marks
Complaint sells trampolines and trampoline accessories under its JUMPSPORT marks. As noted in the article from the April/May 2007 volume of “Inventor’s Digest” Complainant began using JUMPSPORT in 1997 and enjoyed early and considerable success under its JUMPSPORT name and marks. For example, as noted in the article, JumpSport’s early JUMPSPORT marked trampoline accessory product was named one of the five best new products of the year at the 1998 Super Show “and within months was selling briskly at Costco, BJ’s Wholesale, Fred Meyers, and other retailers.” JumpSport registered the domain name jumpsport.com in 1997, and its use of the name online from as early as 1998. Since 1997 JumpSport has continued to grow and expand its use of its JUMPSPORT marks.
In addition to using its JUMPSPORT marks and acquiring common law rights in its marks, JumpSport also registered its JUMPSPORT marks with the United States Patent and Trademark Office.
JumpSport’s use of its JUMPSPORT marks made JUMPSPORT well known well before the 2002 registration of the disputed JumpSports.com domain. Moreover, JumpSport’s federal registrations for its marks issued in 2001 on applications filed in 1997 and 2001. This was also well before the 2002 registration of the disputed JumpSports.com domain.
The foregoing evidence proves that Complainant has strong prior rights in its JUMPSPORT marks.
2. The Disputed Domain Name Is Confusingly Similar To Complainant’s JUMPSPORT Marks Because It Is Merely A Typo Of Complainant’s Marks
The only difference between Complainant’s JUMPSPORT trademarks and the disputed JumpSports.com domain name is the addition of the letter “S” to Complainant’s JUMPSPORT marks. This type of alteration takes advantage of the confusing similarity of plural words and also an Internet user’s accidental mistyping of JUMPSPORT as the plural version. Such alterations have been consistently recognized as likely to cause confusion. See, e.g., Cargill, Incorporated v. RN WebReg c/o RareNames, Inc., FA1260307 (NAF, June 12, 2009) (finding the mark CARGILL and domain name cargills.com confusingly similar); Google Inc. v. Texas International Property Associates, FA1212995 (NAF Aug. 25, 2008) (finding youtubes.com confusingly similar to YOUTUBE); Jelly Belly Candy Company v Aaron Peavy, FA1082271 (NAF, Nov. 9, 2007) (transferring sportsbeans.com to the owner of the mark SPORT BEANS and finding “Complainant’s mark and the disputed domain name differ only in that a letter “S” has been added to the “SPORT” word, and that the space between “SPORTS” and “BEANS” is missing in the domain name. These minor differences are inapt to distinguish the domain name from the mark.”)
Thus, it is clear that the disputed domain name is confusingly similar to Complainant’s JUMPSPORT marks. [ICANN Rule 3(b)(ix)(1); ICANN Policy ¶4(a)(i)]
[B.] Respondent Has No Rights Or Legitimate Interests In The Disputed Domain Name
Where a Respondent has merely “appropriated and slightly altered the spelling of the Complainant’s trademark without permission,” as Respondent has done here, such actions “giv[e] rise to the prima facie assumption that [Respondent] did so for an illegitimate purpose, namely registering the domain name with the intention of misleading consumers.” Amazon.com, Inc. v. Banks, FA785586 (NAF Oct. 11, 2006).
Further, Respondent is using the confusingly similar disputed domain in connection with a commercial website that contain links to Complainant’s competitors, offering goods and services identical to those offered by Complainant under its JUMPSPORT marks. This type of use being made by the Respondent is not use in connection with a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) or legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See, e.g., Amazon.com, Inc. v. Whois Privacy, Inc., FA536281 (NAF Sept. 26, 2005) (“[U]sing [a] domain name to operate a website that features links to various commercial websites, including some operated by Complainant’s competitors…is not [use] in connection with a bona fide offering of goods or services pursuant to Policy ¶4(c)(i).”); Amazon.com v. Object Object Publishing Software, Inc. c/o Tim Hennings, FA1103565 (NAF Dec. 11, 2007).
Moreover, Respondent is not identified in WHOIS record for the disputed domain as “JumpSport.” Instead, Responded is identified as WebContents, Inc. Thus, Respondent clearly is not commonly known by the domain name pursuant to Policy ¶4(c)(ii). See Amazon.com v. Object Publishing Software, FA1103565.
Simply put, the evidence demonstrates that Respondent has no rights or legitimate interest in the JumpSports.com domain name. Instead, Respondent is simply attempting to use Complainant’s JUMPSPORT marks as well as the typographical proximity of the disputed domain to Complainant’s marks to drive traffic to its website corresponding to the disputed domain. [ICANN Rule 3(b)(ix)(2); ICANN Policy ¶4(a)(ii)]
[C.] The Disputed Domain Name Was Registered And Is Being Used In Bad Faith
The disputed domain name is clearly a typo of JumpSport’s JUMPSPORT mark, merely adding the letter “S” to JumpSport’s registered mark. Respondent is also using the disputed domain in connection with a website advertising the same goods and services that Complainant offers under its JUMPSPORT marks. Such a pluralized typo and use of the corresponding domain to display competitive links has been recognized as showing bad faith under Policy ¶4(b)(iii). Insurance Company v. Bin g Glu c/o G Design no sale – building, FA1036129 (NAF Sept. 2, 2007) (transferring libertymutuals.com to Liberty Mutual and stating “Respondent’s <libertymutuals.com> domain name is confusingly similar to Complainant’s LIBERTY MUTUAL mark and resolves to a website featuring links to third parties, some of whom offer services in competition with those services offered under Complainant’s mark. This Panel finds this to be further evidence of bad faith pursuant to Policy ¶4(b)(iii).”). See also, e.g., American Airlines, Inc. v. Telecom Tech Corp., FA1224015 (NAF Oct. 29, 2008) (finding bad faith where “[m]any of the links on the website resolving from the disputed domain names advertise the [directly competitive] services of Complainant’s competitors.”); Bloomberg L.P. v. Future Movie Name, FA 139664 (NAF Feb. 8, 2003) (“The practice of ‘typosquatting’ has been recognized as a bad faith use of a domain name under the UDRP.”); Nat'l Ass'n of Prof'l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting . . . is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
In addition, Respondent is a recidivist cybersquatter and its recidivism further shows its bad faith in this case. As noted by the panel in World Wide Commerce Corporation v. WebContents, Inc.:
Respondent has previously been the subject of two UDRP proceedings in which it was ordered to transfer disputed domain names that infringed upon the trademark rights of others. See Ace Cash Express, Inc. v. WebContents, Inc., FA 1095263 (Nat. Arb. Forum Dec. 3, 2007); see also Baxter Int’l, Inc. v. WebContents, Inc., FA 679475 (Nat. Arb. Forum May 31, 2006). The Panel finds that these decisions support a conclusion that Respondent registered and used the <worldwidecommerce.com> domain name in bad faith pursuant to Policy ¶4(b)(ii).
World Wide Commerce Corporation v. WebContents, Inc., FA 1124467 (NAF Feb 13, 2008) (transferring worldwidecommerce.com away from the current Respondent in this case).
The only plausible reason for Respondent’s registration of the disputed domain name was to intentionally attempt to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and products and/or services offered thereon. The registration for the disputed domain should therefore be ordered transferred to Complainant before further harm and confusion accrues.
B. Respondent failed to submit a Response in this proceeding.
Complainant JumpSport, Inc. uses its JUMPSPORT mark for trampoline related goods and services. Complainant owns multiple trademark registrations for its JUMPSPORT mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,503,030 issued October 30, 2001).
Respondent WebContents, Inc. (www.WebContents.com) c/o Domain Management registered the disputed domain name on May 12, 2002. The disputed domain name resolves to a website featuring links to competing trampoline related goods and services.
Respondent has been a respondent in at least two other prior UDRP proceedings which resulted in the transfer of the disputed domain names in those cases to the respective complainants. See Ace Cash Express, Inc. v. WebContents, Inc., FA 1095263 (Nat. Arb. Forum Dec. 3, 2007); see also Baxter Int’l, Inc. v. WebContents, Inc., FA 679475 (Nat. Arb. Forum May 31, 2006).
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 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 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 submits evidence of its USPTO trademark registrations for its JUMPSPORT mark (e.g., Reg. No. 2,503,030 issued October 30, 2001). The Panel finds registration of a mark with the USPTO is sufficient evidence of Complainant’s rights in the mark pursuant to Policy ¶4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); 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.”).
Complainant argues Respondent’s <jumpsports.com> domain name is confusingly similar to Complainant’s JUMPSPORT mark. The disputed domain name differs from Complainant’s mark in only two minor ways: the additions of the trailing letter “s” and the generic top-level domain (“gTLD”) “.com.” The Panel finds these additions are inconsequential and determines the disputed domain name indistinguishable from Complainant’s mark. See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶4(a)(i)); see also T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶4(a)(i)); see also 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.”); 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, according to Policy ¶4(a)(i), the Panel concludes Respondent’s <jumpsports.com> domain name is confusingly similar to Complainant’s JUMPSPORT mark.
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant claims Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must first make a prima facie case in support of its allegations, then the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name under 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 Complainant has established a prima facie case and Respondent has failed to submit a Response to these proceedings. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). Out of an abundance of caution, this Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name.
Complainant argues Respondent is not identified in the WHOIS information as JUMPSPORT. Respondent is identified as “WebContents, Inc.” The Panel finds no other evidence in the record to indicate Respondent is commonly known by the <jumpsports.com> domain name. Therefore, the Panel concludes Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(c)(ii). See 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); 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 asserts Respondent is using the confusingly similar disputed domain name in connection with a commercial website that contains links to Complainant’s competitors, offering goods and services identical to those offered by Complainant under its JUMPSPORT mark. Complainant argues Respondent’s use is not one 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). The Panel agrees. See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent has been a respondent in at least two other prior UDRP proceedings which resulted in the transfer of the disputed domain names in those cases to the respective complainants. See Ace Cash Express, Inc. v. WebContents, Inc., FA 1095263 (Nat. Arb. Forum Dec. 3, 2007); see also Baxter Int’l, Inc. v. WebContents, Inc., FA 679475 (Nat. Arb. Forum May 31, 2006). The Panel finds prior adverse UDRP proceedings against Respondent can (and does in this case) demonstrate a pattern of bad faith registration and use 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 Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another Policy proceeding against the respondent to find that “this is part of a pattern of such registrations”).
Complainant argues Respondent registered and is using the disputed domain name in connection with a website advertising the same goods and services Complainant offers under its JUMPSPORT mark and offers links to these competing businesses. Complainant claims registration and use of the disputed domain name to display competitive links has been recognized as bad faith under Policy ¶4(b)(iii). The Panel agrees and finds Respondent’s registration and use of the <jumpsports.com> domain name constitutes a disruption of Complainant’s business under these facts and circumstances. 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).
Although Complainant does not argue it, the Panel finds it likely Respondent is profiting in some way from the displayed third-party links on the resolving website, most likely through click-through fees. Respondent’s registration and use of a confusingly similar disputed domain name to gain commercially is evidence of Respondent’s bad faith under 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).
The Panel finds Policy ¶4(a)(iii) 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 <jumpsports.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: May 2, 2011
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