World Triathlon Corporation v. Fred Sommer
Claim Number: FA0611000854140
Complainant is World Triathlon Corporation (“Complainant”), represented by Joseph
J. Weissman, of Johnson, Pope, Bokor, Ruppel & Burns,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ironmn.com> and <irnman.com>, registered with Go Daddy Software, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on November 30, 2006.
On November 29, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <ironmn.com> and <irnman.com> domain names are registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the names. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 November 30, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 20, 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@ironmn.com and postmaster@irnman.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 27, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <ironmn.com> and <irnman.com> domain names are confusingly similar to Complainant’s IRONMAN mark.
2. Respondent does not have any rights or legitimate interests in the <ironmn.com> and <irnman.com> domain names.
3. Respondent registered and used the <ironmn.com> and <irnman.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, World Triathlon Corporation,
is a
Respondent registered the <ironmn.com> and <irnman.com> domain names on January 25, 2001. Respondent’s disputed domain names previously resolved to Respondent’s competing website, and currently resolve to the website of a sports magazine owned by a third-party.
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.
The Panel finds that Complainant’s trademark registrations, both internationally and with the USPTO, sufficiently establish Complainant’s rights in the IRONMAN mark. 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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("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.").
Additionally, Respondent’s <ironmn.com> and <irnman.com> domain names are confusingly similar to Complainant’s IRONMAN mark as they contain Complainant’s mark with the omission of either the letter “a” or “o” from the mark. Such omissions are common typing errors among Internet users and thus the disputed domain names are typosquatted versions of Complainant’s mark. The Panel thus finds that the <ironmn.com> and <irnman.com> domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant must initially establish that Respondent lacks rights or legitimate interests with respect to the disputed domain names. However, once Complainant makes a prima facie case, the burden of proof shifts, and Respondent must prove that it has rights or legitimate interests in the <ironmn.com> and <irnman.com> domain names. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. 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.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent’s WHOIS information does not indicate that Respondent is commonly known by the <ironmn.com> and <irnman.com> domain names and there is no other evidence in the record to suggest that Respondent is commonly known by the disputed domain names. Additionally, Complainant asserts that Respondent is not authorized to use Complainant’s IRONMAN mark that Respondent is not associated with Complainant in any way. The Panel thus finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
The evidence on record shows that Respondent was previously using the <ironmn.com> and <irnman.com> domain names to redirect Internet users attempting to locate Complainant’s website to the Respondent’s competing website. Such diversionary use 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 DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also 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).
Respondent’s current use of the disputed domain names to
redirect Internet users to an unrelated third-party website also demonstrates
that Complainant lacks rights and legitimate interests in the disputed domain
names under Policy ¶ 4(a)(ii). See Seiko
Kabushiki Kaisha v. CS into Tech, FA
198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking
for products relating to the famous SEIKO mark, to a website unrelated to the
mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use
under Policy ¶ 4(c)(iii).”); see also Golden Bear Int’l, Inc. v.
Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use
of a domain name confusingly similar to Complainant’s mark to divert Internet
users to websites unrelated to Complainant's business does not represent 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 Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s previous use of the <ironmn.com> and <irnman.com> domain names to redirect Internet users to Respondent’s competing website constitutes disruption under Policy ¶ 4(b)(iii). See 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); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the complainant's marks suggests that the respondent, the complainant’s competitor, registered the names primarily for the purpose of disrupting the complainant's business).
The Panel further finds that Respondent’s use of the disputed domain names to redirect Internet users attempting to locate Complainant’s website to Respondent’s own website was presumably done for Respondent’s own commercial gain. Additionally, the <ironmn.com> and <irnman.com> domain names are capable of creating a likelihood of confusion as to the source and affiliation of Complainant with Respondent’s disputed domain names and corresponding websites. Such use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant).
Moreover, the Panel finds that Respondent’s disputed domain names are typosquatted versions of Complainant’s IRONMAN mark. Such typosquatting is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
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 <ironmn.com> and <irnman.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 8, 2007
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