World Wrestling Entertainment, Inc. v. Ryan Oelkers
Claim Number: FA1212001474128
Complainant is World Wrestling Entertainment, Inc. (“Complainant”), represented by Matthew C. Winterroth of World Wrestling Entertainment, Inc., Connecticut, USA. Respondent is Ryan Oelkers (“Respondent”), Nebraska, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwebrawlinbuddies.info>, registered with Wild West Domains, LLC (R213-LRMS).
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 4, 2012; the National Arbitration Forum received payment on December 5, 2012.
On December 5, 2012, Wild West Domains, LLC (R213-LRMS) confirmed by e-mail to the National Arbitration Forum that the <wwebrawlinbuddies.info> domain name is registered with Wild West Domains, LLC (R213-LRMS) and that Respondent is the current registrant of the name. Wild West Domains, LLC (R213-LRMS) has verified that Respondent is bound by the Wild West Domains, LLC (R213-LRMS) 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 December 5, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 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@wwebrawlinbuddies.info. Also on December 5, 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 January 7, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco, 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
Complainant contends as follows:
Complainant has rights in the WWE mark. Complainant owns numerous registrations for the WWE mark (e.g., Reg. No. 2,772,683 registered Oct. 7, 2003) with the United States Patent and Trademark Office (“USPTO”) for use in connection with retail and entertainment services, including toys.
The <wwebrawlinbuddies.info> domain name is confusingly similar to the WWE mark. Respondent adds only the generic terms “brawlin” and “buddies” and appends the generic top-level domain, “.info,” to the WWE mark to create the disputed domain name. These are not changes which eliminate confusing similarity.
Respondent is not known by the <wwebrawlinbuddies.info> domain name. Respondent has no connection or affiliation with Complainant, has not received license or consent from Complainant to use the WWE mark, and is not sponsored or endorsed by Complainant in any way. The <wwebrawlinbuddies.info> domain name resolves to a website where Respondent displays third party links to <ebay.com> where Respondent earns a fee each time this diversion leads to a purchase/winning bid.
Respondent uses the <wwebrawlinbuddies.info> domain name in bad faith, to divert users from Complainant’s website. Complainant’s prospective customers will assume that the <wwebrawlinbuddies.info> domain name is authorized by Complainant as Respondent purports to legitimately offer an authorized avenue to purchase Complainant’s merchandise. Respondent sought to capitalize on the fame and value of the WWE mark. Respondent purposefully creates confusion with the WWE mark so that Respondent may from Internet users’ mistakes. Respondent has intentionally attempted to attract, for commercial gain, Internet users to the <wwebrawlinbuddies.info> domain name by creating a likelihood of confusion as to the source or sponsorship of the <wwebrawlinbuddies.info> domain name.
Respondent had constructive and actual knowledge of complainant’s rights in the WWE mark prior to registering and beginning to use the <wwebrawlinbuddies.info> domain name. Complainant’s WWE mark is famous. Complainant’s USPTO registrations give Respondent additional notice of Complainant’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns numerous registrations for the WWE mark with the USPTO as well as numerous other registrars worldwide.
Respondent registered the at-issue domain name after Complainant acquired rights in the WWE mark.
Respondent is not authorized to use Complainant’s mark in any capacity.
The <wwebrawlinbuddies.info> domain name addresses a website where Respondent displays third party links to <ebay.com>. Respondent earns a fee each time a visit to Respondent’s website leads to an eBay purchase.
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.”).
The at-issue domain name is confusingly similar to a mark in which the Complainant has trademark rights.
Pursuant to Policy ¶ 4(a)(i), Complainant owns trademark rights in the WWE mark through its registrations thereof with the USPTO and other registrars worldwide. 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).
The <wwebrawlinbuddies.info> domain name is confusingly similar to Complainant’s WWE mark pursuant to Policy ¶ 4(a)(i). Respondent’s domain name contains Complainant’s entire WWE mark and adds the descriptive terms “brawlin” (a common contraction of “brawling”) and “buddy.” The domain name necessarily also contains a generic top-level domain, here “.info.” However, these alterations are insufficient to distinguish the at-issue domain name from Complainant’s trademark. See Am. 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)); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
The WHOIS information for the <wwebrawlinbuddies.info> domain name lists “Ryan Oelkers” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <wwebrawlinbuddies.info> domain name. Therefore the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to 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).
The <wwebrawlinbuddies.info> domain name addresses a website where Respondent displays third party links to <ebay.com>. There, Respondent earns a fee each time a visitor links to <ebay.com> and makes a purchase. Displaying links on a website that commercially benefits Respondent and is addressed by a confusingly similar domain name is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)).
The at-issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may also conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above, the <wwebrawlinbuddies.info> domain name addresses a website where Respondent displays third party links to <ebay.com>. Respondent earns a fee each time someone visits eBay via one of Respondent’s links and makes a purchase. Because the domain name is confusingly similar to Complainant’s trademark and Respondent purports to legitimately offer an authorized avenue to purchase Complainant’s merchandise, Complainant’s prospective customers may assume that the <wwebrawlinbuddies.info> domain name is authorized by Complainant. Respondent purposefully creates this confusion between the at-issue domain name and the WWE mark so that he may benefit from Internet users’ mistakes regarding the sponsorship of his website. In using the domain name in this manner, Respondent seeks to capitalize on the fame and value of the WWE mark. Thereby, pursuant to Policy ¶4(b)(iv), Respondent has intentionally attempted to attract, for commercial gain, Internet users to the <wwebrawlinbuddies.info> website by creating a likelihood of confusion regarding its source or sponsorship, and therefore the Panel finds that Respondent registered and is using the <wwebrawlinbuddies.info> domain name in bad faith. 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 had actual knowledge of Complainant’s rights in the WWE mark prior to registering the <wwebrawlinbuddies.info> domain name. Complainant’s WWE mark is well known in the United States and elsewhere, and the website addressed by Respondent’s domain name displays links to products unmistakably associated with Complainant. Respondent’s use of the at-issue domain name to address a website linking to <ebay.com> to facilitate the sale of products related to Complainant further suggests that Respondent had knowledge of Complainant and its WWE trademark when he registered the at-issue domain name. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant's mark and the content advertised on the respondent's website was obvious, the respondent "must have known about the Complainant's mark when it registered the subject domain name"). These circumstances demonstrate that Respondent registered the at-issue domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration); see also Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (finding that there are reasonable grounds to infer that Respondent had actual notice of Complainant’s rights in the mark, and therefore registered the disputed domain name in bad faith).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwebrawlinbuddies.info> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 21, 2013
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