Nike, Inc. v. David Illidge
Claim Number: FA1401001537684
Complainant is Nike, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is David Illidge (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <shopnikejordan.com>, registered with GODADDY.COM, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 7, 2014; the National Arbitration Forum received payment on January 7, 2014.
On January 7, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <shopnikejordan.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 7, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 27, 2014 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@shopnikejordan.com. Also on January 7, 2014, 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 29, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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 is an internationally famous designer and seller of footwear, apparel and athletic equipment. Complainant uses NIKE and various other marks to sell its goods through its own retail stores and those of other companies around the world. Complainant’s NIKE mark, first used in 1971, has been registered in the United States since 1982. One of Complainant’s most popular shoe lines is called the JORDAN.
Complainant contends that the disputed domain name, <shopnikejordan.com>, is confusingly similar to its NIKE mark. Complainant states that Respondent is using the domain name for a website that also uses Complainant’s marks in the title and body of the site, and alleges that counterfeit and other unauthorized products bearing Complainant’s marks are being offered for sale through the site, along with products of competing companies. Complainant asserts that Internet users encountering this site are likely to be confused into believing that it is connected or affiliated with Complainant. Complainant suggests that the website may also be collecting personal information from visitors with the intent of selling it or engaging in identity theft. Complainant states that Respondent is not commonly known by the disputed domain name, and that Respondent is not making a legitimate noncommercial or fair use of the name. Complainant also notes that the contact information provided by Respondent in the domain name registration record appears to be false. On these grounds, Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name, and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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 disputed domain name combines Complainant’s NIKE trademark with the generic term “shop”; the word “Jordan,” which is the name of a popular line of Complainant’s products; and the top-level domain suffix “.com”. None of these additions significantly distinguish the domain name from Complainant’s mark. See, e.g., Nike, Inc. v. MTi Networks Ltd. a/k/a Mike Watson, FA 1358956 (Nat. Arb. Forum Dec. 23, 2010) (finding <shopnike.com> confusingly similar to NIKE); Nike, Inc. v. Transure Enterprise Ltd, FA 1308870 (Nat. Arb. Forum Apr. 14, 2010) (finding <conversechuck.com> confusingly similar to CONVERSE). Accordingly, the Panel considers the disputed domain name to be confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark and the name of a line of Complainant’s products; its only apparent use has been to promote the sale of counterfeit and competing goods. See Nike, Inc. v. Fang Wei, FA 1272458 (Nat. Arb. Forum Aug. 21, 2009) (finding lack of rights or legitimate interests based upon similar facts). Respondent has not come forward with any evidence of rights or legitimate interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s use of the domain name for a website containing pay-per-click links, presumably including links to Complainant’s competitors, is indicative of bad faith use under paragraph 4(b)(iv). See, e.g., Nike, Inc. v. Fang Wei, supra. Absent any evidence that the domain name was registered for a different purpose, the Panel infers that the name was registered in bad faith as well. The use of false information in the domain name registration record lends further support to these conclusions.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <shopnikejordan.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 7, 2014
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