Eldrick "Tiger" Woods v.
Turvill Consultants
Claim
Number: FA0501000406862
Complainant is Eldrick "Tiger" Woods (“Complainant”),
represented by Mark Steinberg, of IMG Worldwide, Inc.,
IMG Center, Ste. 100, 1360 East 9th Street, Cleveland, OH 44114-1782. Respondent is Turvill Consultants (“Respondent”), 265 Port Union Road, Suite
15525, Scarborough, Ontario, Canada MIC4Z7.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <tigerwoodswife.com>, registered with Moniker
Online Services, 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.
Hon.
Ralph Yachnin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on January
20, 2005; the National Arbitration Forum received a hard copy of the Complaint
on January 24, 2005.
On
January 24, 2005, Moniker Online Services, Inc. confirmed by e-mail to the
National Arbitration Forum that the domain name <tigerwoodswife.com>
is registered with Moniker Online Services, Inc. and that Respondent is the
current registrant of the name. Moniker Online Services, Inc. has verified that
Respondent is bound by the Moniker Online Services, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the
"Policy").
On
January 26, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 15, 2005 by which Respondent could file a Response to
the Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@tigerwoodswife.com by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
February 24, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed Hon, Ralph
Yachnin 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." 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 makes the following assertions:
1. Respondent’s <tigerwoodswife.com>
domain name is confusingly similar to Complainant’s TIGER WOODS mark.
2. Respondent does not have any rights or
legitimate interests in the <tigerwoodswife.com> domain name.
3. Respondent registered and used the <tigerwoodswife.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Eldrick “Tiger” Woods c/o IMG Worlwide, Inc. (collectively, “Complainant”), is
one of the best known sports personalities in the world. Complainant is known as ‘Tiger’ by adults
and children alike throughout the world.
Complainant became a professional golfer in 1996 and is the first PGA
golfer to ever hold all four professional major championships at the same time
and was ranked #1 in the official World Golf Rankings for a PGA record of 264
consecutive weeks. Complainant has also
become well known and admired around the world through global exposure he has
received in broadcasts and Internet coverage of golf tournaments, exhibitions,
and charity events. Additionally,
Complainant has granted third parties the licensed right to utilize his
trademarked name, TIGER WOODS, in connection with various endorsements,
products and services such as Buick automobiles, Nike golf equipment and
apparel, and Golf Digest magazine.
Complainant
married his wife, Elin Maria Pernilla Nordegren, on October 5, 2004.
Complainant
registered his name, TIGER WOODS with the United States Patent and Trademark
Office on April 10, 2001 (Reg. No. 2,442,618) in the name of Complainant’s
personal service corporation, ETW, Corp.
Respondent
registered the <tigerwoodswife.com> domain name on November 27,
2004. Respondent is using the disputed
domain name to redirect Internet users to Respondent’s pornographic website at
the <youngyears.com> domain name.
Internet users rerouted to <youngyears.com> encounter a home page
consisting of a series of nine pornographic and erotic photographs and cartoon
blocks. Respondent’s webpage then
prompts Internet users to obtain a thirty minute “trial membership” to view the
materials. Unless the user cancels the
thirty minute trial membership, it automatically converts to a one day trial
membership for $1.95, which, unless cancelled, then automatically converts to a
full membership with a $34.61 recurring fee every month until cancelled.
Respondent has
previously been involved in Internet domain dispute proceedings where the Panel
ruled against Respondent under facts similar to the present proceeding. See Zappos.com, Inc. v. Turvill Consultants
Ltd, FA 227655 (Nat. Arb. Forum Mar. 4, 2004).
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.
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.
Complainant
established rights in the TIGER WOODS mark through registration with the United
States Patent and Trademark Office in addition to continuous use of the mark in
commerce. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept.
16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that
they are inherently distinctive and have acquired secondary meaning.”); see also Janus Int’l Holding Co. v.
Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions
have held that registration of a mark is prima
facie evidence of validity, which creates a rebuttable presumption that the
mark is inherently distinctive.
Respondent has the burden of refuting this assumption); see also
Hooijdonk v. Tait, D2000-1068 (WIPO Nov. 4, 2000) (finding that
Complainant, professional soccer player Van Hooijdonk, had established common
law rights in his name through evidence of its use related to sports clothing,
games and his international recognition stemming from the 2000 European
Championship).
Respondent’s <tigerwoodswife.com>
domain name is confusingly similar to Complainant’s TIGER WOODS mark because
the domain name incorporates Complainant’s entire mark and only deviates with
the addition of the generic or descriptive word “wife.” The mere addition of a generic or
descriptive word to a registered mark does not negate the confusing similarity
of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See Quixtar Inv., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000)
(finding that because the domain name <quixtar-sign-up.com> incorporates
in its entirety Complainant’s distinctive mark, QUIXTAR, the domain name is
confusingly similar); see also Body
Shop Int’l PLC v. CPIC NET, D2000-1214 (WIPO Nov. 26, 2000) (finding that
the domain name <bodyshopdigital.com> is confusingly similar to
Complainant’s THE BODY SHOP trademark); see also Mr. Severiano Ballesteros
Sota, Fairway, S.A. and Amen Corner, S.A. v. Waldron, D2001-0351 (WIPO June
18, 2001) (finding that Respondent’s <seveballesterostrophy.com> domain
name was confusingly similar to Complainant’s common-law rights in his name).
The Panel finds
that Complainant has satisfied the requirements of Policy ¶ 4(a)(i).
Complainant
alleges that Respondent has no rights or legitimate interests in the <tigerwoodswife.com>
domain name. The burden shifts to
Respondent to show that it does have rights or legitimate interests once
Complainant establishes a prima facie case pursuant to Policy ¶
4(a)(ii). Due to Respondent’s failure
to respond to the Complaint, it is assumed that Respondent lacks rights and
legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb.
Forum Oct. 1, 2002) (holding that where Complainant has asserted that
Respondent has no rights or legitimate interests with respect to the domain
name it is incumbent on Respondent to come forward with concrete evidence
rebutting this assertion because this information is “uniquely within the
knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228
(WIPO Nov. 28, 2000) (finding that under certain circumstances the mere
assertion by Complainant that Respondent has no right or legitimate interest is
sufficient to shift the burden of proof to Respondent to demonstrate that such
a right or legitimate interest does exist); see also Pavillion Agency, Inc. v. Greenhouse Agency
Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to
respond can be construed as an admission that they have no legitimate interest
in the domain names).
Moreover,
the Panel may accept all reasonable allegations and inferences in the Complaint
as true because Respondent has not submitted a response. See 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.”); see also
Vertical Solutions Mgmt., Inc. v. webnet-marketing, Inc., FA 95095 (Nat.
Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows
all reasonable inferences of fact in the allegations of Complainant to be
deemed true.); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398
(WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that
Complainant’s allegations are true unless clearly contradicted by the
evidence).
Respondent
is using the disputed domain name to redirect Internet users to a pornographic
commercial website. Respondent’s use of
a domain name that is confusingly similar to Complainant’s TIGER WOODS mark to
redirect Internet users to a pornographic website is not a use in connection
with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and
it is not a legitimate noncommercial or fair use of the domain name pursuant to
Policy ¶ 4(c)(iii) See ABB Asea
Brown Boveri Ltd. v. Quicknet, D2003-0215 (WIPO May 26, 2003)
(stating that the fact that the “use of the disputed domain name in connection
with pornographic images and links tarnishes and dilutes [Complainant’s mark]”
was evidence that Respondent had no rights or legitimate interests in the
disputed domain name); see also Microsoft Corp. v. Horner, D2002-0029
(WIPO Feb. 27, 2002) (holding that Respondent’s use of Complainant’s mark to
“define the location of Respondent’s website on the Internet” and to host a
pornographic website was not a legitimate noncommercial or fair use of the
domain name); see also McClatchy Mgmt. Serv., Inc. v. Carrington, FA
155902 (Nat. Arb. Forum June 2, 2003) (holding that Respondent’s use of the disputed domain names to divert Internet users to a website that features
pornographic material, had been “consistently held” to be neither a bona fide
offering of goods or services . . . nor a legitimate noncommercial or fair
use).
Furthermore,
Respondent has not offered any evidence and there is no proof in the record or
in the WHOIS domain name registration information indicating that Respondent is
commonly known by the <tigerwoodswife.com>
domain name. Thus, Respondent has not
established rights or legitimate interests in the disputed domain name pursuant
to Policy ¶ 4(c)(ii). See Compagnie
de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000)
(finding no rights or legitimate interests where Respondent was not commonly
known by the mark and never applied for a license or permission from
Complainant to use the trademarked name); see also Gallup Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that
Respondent does not have rights in the domain name when Respondent is not known
by the mark); see also Tercent Inc. v. 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 Panel finds
that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
Respondent is wholly
appropriating Complainant’s mark to lead Complainant’s fans and Internauts
alike who are searching for information about Complainant or his wife, to a
pornographic website. The Panel finds
that Respondent’s intentional creation of a likelihood of confusion to attract
Internet users for Respondent’s commercial gain, constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Wells Fargo & Co. v. Party Night Inc., FA
144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that Respondent’s
tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence
that the domain names were being used in bad faith); see also National
Ass’n of Stock Car Auto Racing, Inc. v. RMG Inc – BUY or LEASE by E-MAIL, D2001-1387
(WIPO Jan. 23, 2002) (“it is now well known that pornographers rely on
misleading domain names to attract users by confusion, in order to generate
revenue from click-through advertising, mouse-trapping, and other pernicious
online marketing techniques”); see also Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000)
(finding bad faith where Respondent attracted users to his website for
commercial gain and linked his website to pornographic websites).
The Panel finds
that Complainant has satisfied the requirements of 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 <tigerwoodswife.com> domain name be TRANSFERRED
from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated:
March 10, 2005
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