Peter Jerie v. Melik Tas c/o www.livescore.ws
Claim Number: FA0611000831177
Complainant is Peter Jerie (“Complainant”), represented by Sean
F. Heneghan, 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is Melik Tas c/o www.livescore.ws
(“Respondent”), Besiktas,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <livescoreportal.com> and <livescore.ws>, registered with Go Daddy Software, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On November 10, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 30, 2006 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@livescoreportal.com and postmaster@livescore.ws by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <livescoreportal.com> and <livescore.ws> domain names are confusingly similar to Complainant’s LIVESCORE mark.
2. Respondent does not have any rights or legitimate interests in the <livescoreportal.com> and <livescore.ws> domain names.
3. Respondent registered and used the <livescoreportal.com> and <livescore.ws> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Peter Jerie, a citizen of the Czech Republic, has provided real-time scores for sporting events, including soccer, tennis, and ice hockey, since 1998. Complainant’s <livescore.com> domain name is one of the most popular websites world wide, providing scores for over 100 soccer leagues that span thirty-eight countries across Europe, South America, Asia, and North America. Complainant has registered the LIVESCORE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,514,933 issued Dec. 4, 2001).
Respondent registered the <livescore.ws> and <livescoreportal.com> domain names on December 19, 2005 and June 16, 2006, respectively. Respondent’s domain names resolve to websites that feature services identical to, and that directly compete with, Complainant’s services as well as advertisements for numerous gaming entertainment services.
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. 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.”).
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 asserts rights in the LIVESCORE mark through its continuous use since 1998 and its 2001 registration with the USPTO. The Panel finds that such evidence is sufficient to establish rights in a mark for purposes of Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also 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 [or] have acquired secondary meaning.”).
Complainant contends that
Respondent’s <livescore.ws>
and <livescoreportal.com> domain
names are confusingly similar to Complainant’s established mark. Each of Respondent’s disputed domain names
feature Complainant’s entire LIVESCORE mark and add a top-level domain, either
“.ws” or “.com.” In addition,
Respondent’s <livescoreportal.com> domain
name adds the generic term portal after the mark. The Panel finds that the addition of a
top-level domain or a generic term fails to sufficiently distinguish
Respondent’s domain names from Complainant’s mark in accordance with Policy ¶
4(a)(i). See Arthur Guinness Son
& Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001)
(finding confusing similarity where the domain name in dispute contains the
identical mark of the complainant combined with a generic word or term); see
also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000)
(finding that “[n]either the addition of an ordinary descriptive
word . . . nor the suffix ‘.com’ detract from the overall
impression of the dominant part of the name in each case, namely the trademark
SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent lacks all rights or legitimate interests in the <livescore.ws> and <livescoreportal.com> domain names. In instances where Complainant has made a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain names. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant asserts that Respondent’s <livescore.ws> and <livescoreportal.com> domain names resolve to websites that feature competing sports information services and include advertisements to various gaming entertainment services websites. The Panel finds that Respondent’s use of the disputed domain names fails to establish either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); see also Clear Channel Commc’ns, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that the respondent, as a competitor of the complainant, had no rights or legitimate interests in a domain name that utilized the complainant’s mark for its competing website).
Complainant further contends that Respondent is neither commonly known by the <livescore.ws> and <livescoreportal.com> domain names nor authorized to register domain names featuring Complainant’s mark. In the absence of evidence suggesting otherwise, the Panel finds that Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent is using the disputed domain names to operate a website with services identical to, and that compete with, Complainant’s own services. The Panel finds that Respondent’s use of the <livescoreportal.com> and <livescore.ws> domain names amounts to a disruption of Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where the respondent and the complainant were in the same line of business in the same market area); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent).
Furthermore, Respondent’s use will likely cause confusion as to Complainant’s sponsorship of and affiliation with the resulting websites. The Panel finds that such use of a domain name for Respondent’s own commercial gain is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <livescoreportal.com> and <livescore.ws> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 20, 2006
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