Finish Line, Inc. v. Belroots Pty Ltd / Webatopia Marketing Limited / Loshedina Inc / Orel Hlasek LLC / David Ghou / Denholm Borg / Denesh Kumar / Vlad Obchikov / Argosweb Corp / Volchar Pty Ltd / Web Pescados LLC / Luchichang Pty Ltd / Netmilo Pty Ltd / Lidnick Webcorp / WuWeb Pty Ltd / Crystal Image Pty Ltd / Liquid SEO Limited / Alex Ovechkin / Elarson & Associates Pty Ltd / ZincFusion Limited / Marcelos Vainez / Alichec Inc.
Claim Number: FA1207001453564
Complainant is Finish Line, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Belroots Pty Ltd / Webatopia Marketing Limited / Loshedina Inc / Orel Hlasek LLC / David Ghou / Denholm Borg / Denesh Kumar / Vlad Obchikov / Argosweb Corp / Volchar Pty Ltd / Web Pescados LLC / Luchichang Pty Ltd / Netmilo Pty Ltd / Lidnick Webcorp / WuWeb Pty Ltd / Crystal Image Pty Ltd / Liquid SEO Limited / Alex Ovechkin / Elarson & Associates Pty Ltd / ZincFusion Limited / Marcelos Vainez / Alichec Inc. (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <fynishline.com>, <fknishline.com>, <fjnishline.com>, <finyshline.com>, <finkshline.com>, <finjshline.com>, <finizhline.com>, <finixhline.com>, <finiwhline.com>, <finisyline.com>, <finisuline.com>, <finishpine.com>, <finishoine.com>, <finishlkne.com>, <finishljne.com>, <finishlin4.com>, <finishlin3.com>, <finishlihe.com>, <finisbline.com>, <finisaline.com>, <fijishline.com>, and <cinishline.com>, registered with GoDaddy.com, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 16, 2012; the National Arbitration Forum received payment on July 16, 2012.
On July 17, 2012, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <fynishline.com>, <fknishline.com>, <fjnishline.com>, <finyshline.com>, <finkshline.com>, <finjshline.com>, <finizhline.com>, <finixhline.com>, <finiwhline.com>, <finisyline.com>, <finisuline.com>, <finishpine.com>, <finishoine.com>, <finishlkne.com>, <finishljne.com>, <finishlin4.com>, <finishlin3.com>, <finishlihe.com>, <finisbline.com>, <finisaline.com>, <fijishline.com>, and <cinishline.com> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 July 25, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 2012 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@fynishline.com, postmaster@fknishline.com, postmaster@fjnishline.com, postmaster@finyshline.com, postmaster@finkshline.com, postmaster@finjshline.com, postmaster@finizhline.com, postmaster@finixhline.com, postmaster@finiwhline.com, postmaster@finisyline.com, postmaster@finisuline.com, postmaster@finishpine.com, postmaster@finishoine.com, postmaster@finishlkne.com, postmaster@finishljne.com, postmaster@finishlin4.com, postmaster@finishlin3.com, postmaster@finishlihe.com, postmaster@finisbline.com, postmaster@finisaline.com, postmaster@fijishline.com, and postmaster@cinishline.com. Also on July 25, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 August 17, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 names be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Finish Line, Inc., was founded in 1982 and is a national retailer of athletic footwear. Complainant owns multiple trademark registrations for the FINISH LINE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,772,105 registered May 18, 1993).
Respondent registered all of the disputed domain names on May 31, 2007. Some of the disputed domain names resolve to inactive websites. One of the disputed domain names resolve to websites that host competing hyperlinks.
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."
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.
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.”).
Preliminary Issue: Multiple Respondents
In the instant proceedings, the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” All of the 22 Respondents in the case share the same name as respondents in a different UDRP case. See LifeExtension, Inc. v. Alichec Inc., FA 1337664 (Nat. Arb. Forum Sept. 13, 2010). All of the disputed domain names were registered with GoDaddy.com, Inc. on May 31, 2007. The DNS is similar among the majority of the disputed domain names: <ns37.domaincontrol.com> and <ns1.newmdi.com>. The traffic forwarding mechanism for all of the disputed domain names is provided by NewMDI.com. All of the disputed domain names route through Complainant’s affiliate marketing program with Google Affiliate Network and the same account as shown by the use of the same affiliate name or ID. Although three of the disputed domain names do not share the same affiliate name or ID, the other similarities still prove that the same entity registered them. The Panel concludes that all the disputed domain names are controlled by the same entity and thus chooses to proceed with the instant proceedings.
Complainant was founded in 1982 and is a national retailer of athletic footwear. Complainant operates under the FINISH LINE mark and owns multiple trademark registrations for the FINISH LINE mark with the USPTO (e.g., Reg. No. 1,772,105 registered May 18, 1993). In Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007), the panel held that the complainant was not required to register a mark within the country that the respondent resides or operates. In Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007), the panel concluded that the registration of a mark with the USPTO was sufficient to establish rights in the mark under Policy ¶ 4(a)(i). The Panel finds that Complainant owns rights in the FINISH LINE mark pursuant to Policy ¶ 4(a)(i).
Complainant claims that the <fynishline.com>, <fknishline.com>, <fjnishline.com>, <finyshline.com>, <finkshline.com>, <finjshline.com>, <finizhline.com>, <finixhline.com>, <finiwhline.com>, <finisyline.com>, <finisuline.com>, <finishpine.com>, <finishoine.com>, <finishlkne.com>, <finishljne.com>, <finishlin4.com>, <finishlin3.com>, <finishlihe.com>, <finisbline.com>, <finisaline.com>, <fijishline.com>, and <cinishline.com> domain names are confusingly similar to Complainant’s mark because the disputed domain names contain common misspellings of Complainant’s FINISH LINE mark. The disputed domain names add a number, transpose two letters, and/or replace a letter with another letter. These misspellings do not remove the disputed domain names from the realm of confusing similarity. See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that adding the suffixes "502" and "520" to the ICQ trademark does little to reduce the potential for confusion); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); 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”). Respondent adds generic top-level domains (“gTLDs”) to Complainant’s mark. The disputed domain names also do not include the space found in Complainant’s mark. The addition of a gTLD and the removal of a space are irrelevant to a Policy ¶ 4(a)(i) analysis. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s FINISH LINE mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant claims that Respondent is not commonly known by the disputed domain names. Respondent is not authorized or permitted to use Complainant’s FINISH LINE mark and is not sponsored by, or legitimately affiliated, with Complainant. The WHOIS information does not indicate that Respondent is commonly known by the disputed domain names. In Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007), the panel found that the respondent was not commonly known by the disputed domain name because the respondent was not authorized to use the complainant’s mark and the WHOIS information and evidence in the record did not indicate such a fact. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).
The <finishlin3.com>, <finisaline.com>, and <cinishline.com> domain names do not resolve to an active website. Respondent’s inactive use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii). See Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interests can be found when the respondent fails to use disputed domain names in any way).
The <finishlkne.com> domain name resolves to a website that hosts competing hyperlinks. The Panel finds that Respondent’s provision of competing hyperlinks is not a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <finishlkne.com> domain name. See H-D Mich. Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The majority of the disputed domain names resolve to Complainant’s website through Complainant’s affiliate program. The <fynishline.com>, <fknishline.com>, <fjnishline.com>, <finyshline.com>, <finkshline.com>, <finjshline.com>, <finizhline.com>, <finixhline.com>, <finiwhline.com>, <finisyline.com>, <finisuline.com>, <finishpine.com>, <finishoine.com>, <finishljne.com>, <finishlin4.com>, <finishlihe.com>, <finisbline.com>, and <fijishline.com> domain names currently resolve to Complainant’s website through Complainant’s affiliate program and the <finisaline.com> domain name previously resolved to Complainant’s website. The Panel finds that this use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names pursuant to Policy ¶ 4(c)(iii). See Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by signing up for the complainant’s affiliate program upon registering the domain name, which was a misspelling of the complainant’s mark, the respondent intended to use the domain name to generate profit at the complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)).
Respondents are serial cybersquatters that have been involved in previous UDRP decisions in which the panels ordered the transfer of the disputed domain names. See FragranceX.com, Inc. v. Argosweb Corp. D2010-1237 (WIPO Sept. 17, 2010); see also LifeExtension, Inc. v. Alichec Inc., FA 1337664 (Nat. Arb. Forum Sept. 13, 2010); see also Road Runner Sports, Inc. v. Alichec Inc., FA 1337661 (Nat. Arb. Forum Sept. 10, 2010); see also BuySeasons, Inc. v. Oleg Techino, FA 1337662 (Nat. Arb. Forum Sept. 14, 2010). These prior UDRP decisions are evidence that Respondent registered and uses all of the disputed domain names in bad faith under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
Respondent’s provision of competing hyperlinks on the <finishlkne.com> domain name disrupts Complainant’s business. The Panel finds that Respondent registered and uses the <finishlkne.com> domain name in bad faith according to Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Respondent profits from the inclusion of competing hyperlinks by receiving click-through fees. Respondent is attempting to create Internet confusion and profit from that confusion. The Panel finds that Respondent registered and uses the <finishlkne.com> domain name in bad faith under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Respondent uses the majority of disputed domain names to redirect to Complainant’s website through Complainant’s affiliate program. The <fynishline.com>, <fknishline.com>, <fjnishline.com>, <finyshline.com>, <finkshline.com>, <finjshline.com>, <finizhline.com>, <finixhline.com>, <finiwhline.com>, <finisyline.com>, <finisuline.com>, <finishpine.com>, <finishoine.com>, <finishljne.com>, <finishlin4.com>, <finishlihe.com>, <finisbline.com>, and <fijishline.com> domain names currently resolve to Complainant’s website and the <finisaline.com> domain name previously resolved to Complainant’s website. Respondent commercially benefits from its registration and use of the disputed domain names by receiving affiliate fees. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program).
Moreover, Policy ¶ 4(b) is not an exclusive list of examples of bad faith registration and use of a contested domain name, so that circumstances falling outside the explicit parameters of that provision of the Policy can provide persuasive evidence for a finding of bad faith registration and use under Policy ¶ 4(a)(iii). See Educ. Testing Serv. v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that the Policy “indicates that its listing of bad faith factors is without limitation”) (emphasis in original); see also Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)] of the Policy, is not conclusive that the domain name in issue was registered in and is being used in bad faith.”).
Respondent’s failure to make an active use of some of the disputed domain names is proof that Respondent registered and uses some of the disputed domain names in bad faith. The <finishlin3.com>, <finisaline.com>, and <cinishline.com> domain names are the domain names that do not resolve to an active website. The Panel finds that Respondent’s failure to make an active use of the disputed domain names evidences Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Disney Enters. Inc. v. Meyers, FA 697818 (Nat. Arb. Forum June 26, 2006) (holding that the non-use of a disputed domain name for several years constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
All 22 disputed domain names are classic examples of typosquatting because the domain names contain a common misspelling of Complainant’s FINISH LINE mark. Respondent is guilty of typosquatting. The Panel finds that Respondent registered and uses all of the disputed domain names in bad faith according to 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).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fynishline.com>, <fknishline.com>, <fjnishline.com>, <finyshline.com>, <finkshline.com>, <finjshline.com>, <finizhline.com>, <finixhline.com>, <finiwhline.com>, <finisyline.com>, <finisuline.com>, <finishpine.com>, <finishoine.com>, <finishlkne.com>, <finishljne.com>, <finishlin4.com>, <finishlin3.com>, <finishlihe.com>, <finisbline.com>, <finisaline.com>, <fijishline.com>, and <cinishline.com> domain names be TRANSFERRED from Respondent to Complainant .
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 4, 2012
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