Peter Jerie v. Internet Services a/k/a Media Services World Inc.
Claim Number: FA0701000894108
Complainant is Peter Jerie (“Complainant”), represented by Sean
F. Heneghan, 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is Internet Services a/k/a Media
Services World Inc. (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <livescore.org>, registered with Dotster, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 22, 2007; the National Arbitration Forum received a hard copy of the Complaint on January 25, 2007.
On January 22, 2007, Dotster, Inc. confirmed by e-mail to the National Arbitration Forum that the <livescore.org> domain name is registered with Dotster, Inc. and that Respondent is the current registrant of the name. Dotster, Inc. has verified that Respondent is bound by the Dotster, 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 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 20, 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@livescore.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 26, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <livescore.org> domain name is identical to Complainant’s LIVESCORE mark.
2. Respondent does not have any rights or legitimate interests in the <livescore.org> domain name.
3. Respondent registered and used the <livescore.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Peter Jerie,
registered the <livescore.com> domain name to provide Internet users with
real-time scores for various sporting events, including soccer, tennis, and ice hockey.
Complainant has used the LIVESCORE mark since 1998 to promote these
services, which provide scores from over 100 leagues that span thirty-eight
countries across Europe, South America, Asia, and
Respondent, Internet Services a/k/a Media Services World Inc., registered the <livescore.org> domain name on September 8, 2005. Respondent is using the disputed domain name to display numerous hyperlinks, some of which directly compete with Complainant’s services and others that are unrelated.
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’s registration of the LIVESCORE mark with the USPTO in 2001 preceded Respondent’s registration of the <livescore.org> domain name in 2005. Under the Policy, registration of a mark with an appropriate governmental authority confers rights in that mark to Complainant. Thus, the Panel finds that Complainant has established rights in the LIVESCORE mark pursuant to Policy ¶ 4(a)(i). See Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2000) (finding that successful trademark registration with the USPTO creates a presumption of rights in a mark); see also Innomed Tech., 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.”).
Respondent’s <livescore.org> domain name contains Complainant’s LIVESCORE mark in its entirety and adds the generic top-level domain “.org.” In Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003), the panel stated that “[t]he addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.” Similarly, in Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002), the panel found that “it is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.” Accordingly, since the addition of the top-level domain “.org” is the only difference between Respondent’s <livescore.org> domain name and Complainant’s LIVESCORE mark, the Panel concludes that they are identical pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <livescore.org> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because of Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or 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 the complainant has asserted that respondent does not have 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 the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant has alleged that Respondent is not commonly
known by the <livescore.org>
domain name. Complainant has alleged
that Respondent does not have any affiliation, association, or business
relationship of any kind with Complainant, and that
Respondent is not licensed or authorized to use the LIVESCORE mark. The WHOIS information identifies Respondent
as “Internet Services a/k/a Media Services World
Inc.,” and the Panel can find no other evidence in the record indicating that
Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not
commonly known by the <livescore.org>
domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee 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); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
Respondent is using the <livescore.org> domain name to display numerous hyperlinks, some of which directly compete with Complainant’s services, and others that are unrelated. Respondent presumably receives click-through fees for each redirected Internet user. The Panel finds that Respondent’s attempt to commercially benefit from the unauthorized use of Complainant’s LIVESCORE mark does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); 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.
Respondent is using the <livescore.org> domain name to display numerous hyperlinks, some of which directly compete with Complainant’s services. This use of the disputed domain name is likely to disrupt Complainant’s business by diverting business away from Complainant. Therefore, the Panel finds that Respondent’s use of the <livescore.org> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
Respondent’s use of the <livescore.org> domain name, which is confusingly similar to Complainant’s LIVESCORE mark, may confuse customers as to the affiliation, sponsorship, or endorsement of the services advertised on Respondent’s website. Respondent presumably profits from this confusion by receiving click-through referral fees for each redirected Internet user. The Panel finds that such use of the <livescore.org> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain).
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 <livescore.org> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 7, 2007
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