Peter Jerie v. Hotlive c/o Zeynel Brown a/k/a Aaaaaaaaaaaaa c/o Yok Yok
Claim Number: FA0702000921287
Complainant is Peter
Jerie (“Complainant”), represented by Sean
F. Heneghan, 31 Reading Hill Avenue, Melrose, MA 02176, USA. Respondent is Hotlive c/o Zeynel Brown a/k/a Aaaaaaaaaaaaa c/o Yok Yok (“Respondent”), 12 Stret, ncq place,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <hotlivescore.com> and <hotlivescore.net>, registered with Namesdirect.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 20, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2007.
On
On February 27, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 19, 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@hotlivescore.com and postmaster@hotlivescore.net 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 <hotlivescore.com> and <hotlivescore.net> domain names are confusingly similar to Complainant’s LIVESCORE mark.
2. Respondent does not have any rights or legitimate interests in the <hotlivescore.com> and <hotlivescore.net> domain names.
3. Respondent registered and used the <hotlivescore.com> and <hotlivescore.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Peter Jerie, has used the LIVESCORE mark in connection with its business of providing real-time scores for sporting events online since 1998. Complainant holds a United States Patent and Trademark Office (“USPTO”) registration for the LIVESCORE mark (Reg. No. 2,514,933 issued December 4, 2001). Complainant has also registered the <livescore.com> domain name for use in connection with its business.
Respondent registered the <hotlivescore.com> domain
name on
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 has used its LIVESCORE mark since 1998 and its
USPTO registration dates back to 2001, well before Respondent’s registration of
the disputed domain names. The Panel
finds that Complainant has established rights in the LIVESCORE mark pursuant to
Policy ¶ 4(a)(i).
See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Respondent’s <hotlivescore.com> and <hotlivescore.net>
domain names are confusingly similar to Complainant’s LIVESCORE mark. The disputed domain names both include
Complainant’s LIVESCORE mark in its entirety without alteration. In Oki Data Ams., Inc. v. ASD, Inc.,
D2001-0903 (WIPO Nov. 6, 2001), the panel found that “the fact that a domain
name wholly incorporates a Complainant’s registered mark is sufficient to
establish identity [sic] or confusing similarity for purposes of the Policy
despite the addition of other words to such marks.” The only difference between the disputed
domain names and Complainant’s mark is the addition of the generic term
“hot.” Previous panels have declined to
find that the addition of a generic term to a complainant’s mark distinguishes
a disputed domain name from a mark. For
example, the panel in Arthur Guinness Son & Co. (Dublin) Ltd. v.
Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001), found confusing similarity
where the domain name in dispute contained the identical mark of the
complainant combined with a generic word or term. Finally, the disputed domain names add the
generic top-level domains “.com” and “.net” to Complainant’s mark. It is long established that the addition of
top-level domains is without significance under the Policy as top-level domains
are required for all domain names. As the panel in Gardline Surveys Ltd. v. Domain Fin. Ltd.,
FA 153545 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or
legitimate interests in the disputed domain names. Previous panels, including those in Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Respondent is using the disputed domain names to redirect
Internet users to Respondent’s website connected to the <hotlivescore.com>
domain name. Respondent’s website
includes real-time scores and links to gaming entertainment services, services
that are in direct competition with Complainant’s services offered at its
<livescore.com> domain name.
Presumably, Respondent is profiting both from the collection of fees for
its real-time scores and from pay-per-click fees generated by the third-party
links on its website. In similar
circumstances, panels have found that such competing use of a domain name
including a complainant’s mark is neither a bona fide offering of goods
or services as contemplated by Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). For example, the panel in Computerized
Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum
Additionally, there is no available evidence that Respondent
is commonly known by the <hotlivescore.com> and <hotlivescore.net>
domain names either as an individual or as a business. In Tercent Inc. v. Lee
Yi, FA 139720 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain names to redirect
Internet users to its website which offers services in direct competition with
Complainant. Internet users seeking
Complainant’s genuine website at the <livescore.com> domain name may find
themselves instead redirected to Respondent’s website and may end up doing
business with Respondent instead of with Complainant. Under similar circumstances in Puckett, Individually v. Miller,
D2000-0297 (WIPO
Respondent’s <hotlivescore.com> and <hotlivescore.net> domain names are confusingly similar to Complainant’s LIVESCORE mark. Internet users seeking Complainant’s genuine services may be redirected to Respondent’s website and mistakenly believe that it is sponsored by or affiliated with Complainant. Because Respondent’s disputed domain names contain Complainant’s mark in its entirety and because the website is used for services identical to those of Complainant, it is very likely that Internet users will believe that Respondent has some relationship with Complainant. Respondent is presumably profiting from this confusion by selling services that compete with Complainant and by collecting pay-per-click revenues from links to third-party websites. In Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003), the panel stated that, “as respondent is using the domain name at issue in direct competition with complainant, and giving the impression of being affiliated with or sponsored by complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).” Similarly, the panel in Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003), found that “respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.” Thus, the Panel finds that Respondent has exhibited bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <hotlivescore.com> and <hotlivescore.net> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: April 6, 2007
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