GolfNow, Inc. v. Arkadiusz Kowalczyk
Claim Number: FA1611001704573
Complainant is GolfNow, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Arkadiusz Kowalczyk (“Respondent”), Poland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue are <golfniw.com>, registered with PSI-USA, Inc. dba Domain Robot.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 23, 2016; the Forum received payment on November 23, 2016.
On November 29, 2016, PSI-USA, Inc. dba Domain Robot confirmed by e-mail to the Forum that the <golfniw.com> domain name is registered with PSI-USA, Inc. dba Domain Robot and that Respondent is the current registrant of the name. PSI-USA, Inc. dba Domain Robot has verified that Respondent is bound by the PSI-USA, Inc. dba Domain Robot 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 November 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 19, 2016 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@golfniw.com. Also on November 29, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On December 22, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
1. Complainant has rights in the GOLFNOW.COM mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,348,235, registered on December 4, 2007). Respondent’s <golfniw.com> domain name is confusingly similar to the GOLFNOW.COM mark because it differs through only a single letter substitution.[1]
2. Respondent is not commonly known by the <golfniw.com> domain name according to the WHOIS information and because Respondent is not authorized to use the GOLFNOW.COM mark.
3. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website features links to third-party websites, including direct competitors to Complainant.
4. Respondent lists the <golfniw.com> domain name for sale. Respondent uses the <golfniw.com> domain name in bad faith because the resolving website features links to third-party websites to produce revenue, including direct competitors to Complainant.
5. Respondent registered the <golfniw.com> domain name in bad faith because the use of the resolving website indicates Respondent registered the domain name to target Complainant and because the registration constituted typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the GOLFNOW.COM mark. Respondent’s domain name is confusingly similar to Complainant’s GOLFNOW.COM mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <golfniw.com> domain name and that Respondent registered and uses the domain name 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(f), 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 (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.”).
Complainant has rights in the GOLFNOW.COM mark through its registration with the USPTO (Reg. No. 3,348,235, registered on December 4, 2007) for use with a website for golfers to reserve tee times. T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (FORUM Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.).
Complainant urges that Respondent’s <golfniw.com> domain name is confusingly similar to the GOLFNOW.COM mark because it differs through only a single letter substitution. Accordingly, the Panel agrees. See Intelius, Inc. v. Hyn, FA 703175 (FORUM July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <golfniw.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant maintains that Respondent is not commonly known by the <golfniw.com> domain name as the available WHOIS information lists “Arkadiusz Kowalczyk” as Registrant and further, Respondent has not been authorized to use the GOLFNOW.COM mark. Thus, the Panel concludes Respondent is not commonly known by the domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant contends that Respondent fails to use the <golfniw.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website features links to third-party websites, including direct competitors to Complainant. Because the Panel agrees that the website displays competitive links, it finds that Respondent’s use of the <golfniw.com> domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum January 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant has provided evidence that Respondent has listed the <golfniw.com> domain name for sale. Such evidence customarily results in a finding of bad faith. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (FORUM Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Universal City Studios, Inc. v. Meeting Point Co., D2000-1245 (WIPO Dec. 7, 2000) (finding bad faith where the respondent made no use of the domain names except to offer them to sale to the complainant).
Complainant alleges that Respondent uses the <golfniw.com> domain name in bad faith because the resolving website features links to third-party websites, including to direct competitors of Complainant. The Panel finds this evidence sufficient to show that Respondent is providing links to competitors of Complainant, and agrees that Respondent uses the <golfniw.com> domain name in bad faith according to Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Staples, Inc. and Staples the Opffice Superstors, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Further, Complainant urges that Respondent registered the <golfniw.com> domain name in bad faith because the registration constituted typosquatting. It appears to the Panel that the domain name is illustrative of typosquatting; thus the Panel finds this is evidence of bad faith. See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (FORUM November 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)).
The Panel finds Complainant has satisfied 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 <golfniw.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 27, 2016
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