The National Collegiate Athletic Association v. Chris Cabrera
Claim Number: FA0612000874858
Complainant is The National Collegiate Athletic Association (“Complainant”), represented by Seth
A. Rose, of Loeb & Loeb LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ncaafinalfourtickets.org>, <ncaa-final-four-tickets.com>, <tickets-football-ncaa.com>, <cheapestncaatickets.com>, <cheapncaatickets.com>, <finalfourtickets.org>, <tickets-to-the-final-four.com>, <cheap-final-four-tickets.com>, <cheapfinalfourtickets.com>, <buyfinal4.com>, and <buyfinalfour.com>, 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.
Honorable
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 22, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <ncaafinalfourtickets.org>, <ncaa-final-four-tickets.com>, <tickets-football-ncaa.com>, <cheapestncaatickets.com>, <cheapncaatickets.com>, <finalfourtickets.org>, <tickets-to-the-final-four.com>, <cheap-final-four-tickets.com>, <cheapfinalfourtickets.com>, <buyfinal4.com>, and <buyfinalfour.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 January 4, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 24, 2007 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@ncaafinalfourtickets.org, postmaster@ncaa-final-four-tickets.com, postmaster@tickets-football-ncaa.com, postmaster@cheapestncaatickets.com, postmaster@cheapncaatickets.com, postmaster@finalfourtickets.org, postmaster@tickets-to-the-final-four.com, postmaster@cheap-final-four-tickets.com, postmaster@cheapfinalfourtickets.com, postmaster@buyfinal4.com, and postmaster@buyfinalfour.com 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 <ncaafinalfourtickets.org>, <ncaa-final-four-tickets.com>, <tickets-football-ncaa.com>, <cheapestncaatickets.com>, <cheapncaatickets.com>, <finalfourtickets.org>, <tickets-to-the-final-four.com>, <cheap-final-four-tickets.com>, <cheapfinalfourtickets.com>, <buyfinal4.com>, and <buyfinalfour.com> domain names are confusingly similar to Complainant’s NCAA and FINAL FOUR marks.
2. Respondent does not have any rights or legitimate interests in the <ncaafinalfourtickets.org>, <ncaa-final-four-tickets.com>, <tickets-football-ncaa.com>, <cheapestncaatickets.com>, <cheapncaatickets.com>, <finalfourtickets.org>, <tickets-to-the-final-four.com>, <cheap-final-four-tickets.com>, <cheapfinalfourtickets.com>, <buyfinal4.com>, and <buyfinalfour.com> domain names.
3. Respondent registered and used the <ncaafinalfourtickets.org>, <ncaa-final-four-tickets.com>, <tickets-football-ncaa.com>, <cheapestncaatickets.com>, <cheapncaatickets.com>, <finalfourtickets.org>, <tickets-to-the-final-four.com>, <cheap-final-four-tickets.com>, <cheapfinalfourtickets.com>, <buyfinal4.com>, and <buyfinalfour.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The National
Collegiate Athletic Association, is an association of colleges and universities
governing intercollegiate athletics in the
Respondent registered the <ncaafinalfourtickets.org>
and <finalfourtickets.org>
domain names on December 20, 2005, the <ncaa-final-four-tickets.com>
domain name on February 9, 2004, the <tickets-football-ncaa.com> domain
name on February 26, 2004, the <cheapestncaatickets.com> domain
name on August 26, 2004, the <cheapncaatickets.com> domain name on
November 12, 2003, the <tickets-to-the-final-four.com> on August 6,
2003, the <cheap-final-four-tickets.com> domain name on January
26, 2004, the <cheapfinalfourtickets.com> domain name on November
13, 2003, the <buyfinal4.com> domain name on December 29, 2003 and
the <buyfinalfour.com> domain name December 26,
2003. Respondent’s <ncaafinalfourtickets.org>, <finalfourtickets.org>,
<buyfinal4.com>, and <buyfinalfour.com> domain
names resolve to websites that sell tickets to NCAA events as well as other
non-NCAA-related events. Respondent’s <ncaa-final-four-tickets.com> and <tickets-football-ncaa.com>
domain names resolve to websites featuring sponsored links to unaffiliated
third-party websites, some of which directly compete with Complainant’s
business. Respondent’s <cheapestncaatickets.com>,
<cheapncaatickets.com>, <cheap-final-four-tickets.com>,
<tickets-to-the-final-four.com>, and <cheapfinalfourtickets.com>
domain names have not resolved to any content since their respective dates of
registration.
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 NCAA and FINAL FOUR marks
through registration with the USPTO. The
Panel finds that Complainant’s registration and extensive use of the marks are
sufficient to establish rights in mark pursuant to Policy ¶ 4(a)(i). See Men’s
Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002)
(“Under
All of the disputed domain names contain one or both of Complainant’s protected NCAA and FINAL FOUR marks in their
entirety. The disputed domain names add
generic terms that describe Complainant’s business, hyphens, and in the case of
the <buyfinal4.com> domain name, replacing of the
word “four” with the phonetically identical number “4.” The Panel finds that the addition of generic
terms, hyphens and the replacement of a term with a phonetically identical
number, are insufficient to prevent a finding of confusing similarity pursuant
to Policy ¶ 4(a)(i). See Health Devices Corp. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name. In instances where Complainant has made a prima facie case in support of its allegations, the burden shifts to Respondent to set forth substantial evidence establishing rights and legitimate interests in the disputed domain name in accordance with Policy ¶ 4(a)(ii). See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests); 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 the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s <ncaafinalfourtickets.org>, <finalfourtickets.org>,
<buyfinal4.com>, and <buyfinalfour.com> domain
names resolve to websites that sell tickets to NCAA events as well as other
non-NCAA-related events. The Panel finds
that Complainant’s commercial use of these domain names is neither a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v.
Busby, FA 156251 (Nat. Arb. Forum
Respondent’s <ncaa-final-four-tickets.com> and <tickets-football-ncaa.com> domain names resolve to websites featuring sponsored links to unaffiliated third-party websites, some of which directly compete with Complainant’s business. The Panel finds that such use is neither a bona fide offering of a good or service pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Compaq Info. Techs. Group v Jones, FA 99091 (Nat. Arb. Forum Oct. 4, 2001) (finding that the respondent had no rights or legitimate interests in a domain name that it used to redirect Internet users to a commercial website as part of that website’s affiliate program, where the resultant website contained banner ads as well as various links to offers for free merchandise, including merchandise from the complainant's competitor); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
Respondent’s <cheapestncaatickets.com>, <cheapncaatickets.com>, <cheap-final-four-tickets.com>, <tickets-to-the-final-four.com>, and <cheapfinalfourtickets.com> domain names resolve to no content and have been inactive since their inception. The Panel finds that Respondent’s non-use of the domain names is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain names. See LFP, Inc. v. B & J Props., FA 109697 (Nat. Arb. Forum May 30, 2002) (A the respondent cannot simply do nothing and effectively “sit on his rights” for an extended period of time when that the respondent might be capable of doing otherwise); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the respondent has advanced no basis on which the panel could conclude that it has a right or legitimate interest in the domain names, and no commercial use of the domain names has been established).
Complainant alleges that Respondent is neither commonly
known by the disputed domain names nor authorized to register domain names
featuring Complainant’s NCAA or FINAL FOUR marks in any way. In light of the lack of evidence to support
an alternative finding, the Panel finds that Respondent has not established
rights or legitimate interests in the disputed domain names in accordance with
Policy ¶ 4(c)(ii).
See Am. Online, Inc. v. World Photo Video & Imaging
Corp., FA 109031 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <ncaafinalfourtickets.org>, <finalfourtickets.org>,
<buyfinal4.com>, and <buyfinalfour.com> domain
names resolve to websites that sell tickets to NCAA events as well as other
non-NCAA-related events. The Panel finds
that Respondent’s attempt, for commercial gain, to generate traffic to a
website that sells Complainant’s products evinces registration and use in bad
faith pursuant to Policy ¶ 4(b)(iv). See Utensilerie Assoc. S.p.A. v. C
& M, D2003-0159 (WIPO Apr. 22, 2003)
(“The contents of the website, offering Usag products, together with the domain
name may create the (incorrect) impression that Respondent is either the
exclusive distributor or a subsidiary of Complainant, or at the very least that
Complainant has approved its use of the domain name.”); see also Hunter Fan Co. v. MSS,
FA 98067 (Nat. Arb. Forum Aug. 23, 2001) (finding bad faith where the
respondent used the disputed domain name to sell the complainant’s products
without permission and mislead Internet users by implying that the respondent
was affiliated with the complainant).
Respondent’s <ncaa-final-four-tickets.com> and <tickets-football-ncaa.com>
domain names resolve to websites featuring sponsored links to unaffiliated
third-party websites, some of which directly compete with Complainant’s
business. The Panel finds that
Respondent’s use of the disputed domain names constitutes a disruption of
Complainant’s business in accordance with Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (
Respondent’s <cheapestncaatickets.com>, <cheapncaatickets.com>, <cheap-final-four-tickets.com>, <tickets-to-the-final-four.com>, and <cheapfinalfourtickets.com> domain names resolve to no content and have been inactive since their inception. The Panel finds that Respondent’s inactivity with regard to these domain names constitutes bad faith registration pursuant to Policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).
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 <ncaafinalfourtickets.org>, <ncaa-final-four-tickets.com>, <tickets-football-ncaa.com>, <cheapestncaatickets.com>, <cheapncaatickets.com>, <finalfourtickets.org>, <tickets-to-the-final-four.com>, <cheap-final-four-tickets.com>, <cheapfinalfourtickets.com>, <buyfinal4.com>, and <buyfinalfour.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable
Dated: February 13, 2007
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