ESPN, Inc. and American Broadcasting Company, Inc. v.
Claim Number: FA0704000964677
Complainants are ESPN, Inc. and American Broadcasting Company, Inc. (collectively
“Complainant”), represented by J. Andrew Coombs, of J. Andrew Coombs, A
Professional Corporation, 450 North Brand Boulevard, Suite 600, Glendale, CA
91203-2349, USA. Respondent is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <1033espn.com>, registered with Moniker Online Services, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 19, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 20, 2007.
On
On May 1, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 21, 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@1033espn.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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <1033espn.com> domain name is confusingly similar to Complainant’s ESPN.COM mark.
2. Respondent does not have any rights or legitimate interests in the <1033espn.com> domain name.
3. Respondent registered and used the <1033espn.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainants are ESPN, Inc.
and American Broadcasting Company, Inc. (collectively,
“Complainant”), which are affiliated companies
in the sports television and radio industry.
Complainant operates the largest sports cable television network in the
Respondent registered the <1033espn.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 established rights in the ESPN.COM mark
pursuant to Policy ¶
4(a)(i) through its registration of the mark with the USPTO. See
Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Respondent’s <1033espn.com>
domain name is confusingly similar to Complainant’s ESPN.COM mark pursuant to
Policy ¶ 4(a)(i) because the domain name contains the mark in its entirety and
merely adds the number “1033.” Because
Complainant operates a website at the <espn1033.com> domain name and a
radio station at 103.3 FM, the number has a direct relationship to
Complainant’s business and thus fails to sufficiently distinguish the domain
name from Complainant’s mark under Policy ¶ 4(a)(i). See
Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum
Dec. 15, 2003) (finding that the addition of the term “assurance,” to the
complainant’s AIG mark failed to sufficiently differentiate the name from the
mark under Policy ¶ 4(a)(i) because the appended term related directly to the
complainant’s business); see also Space Imaging LLC v. Brownell,
AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or
legitimate interests in the <1033espn.com>
domain name. Because Complainant made a prima facie case in support of its
allegations, the burden then shifts to Respondent to show it does have rights
or legitimate interests pursuant to Policy ¶ 4(a)(ii). Since Respondent failed 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); see
also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Respondent is using the <1033espn.com> domain name, which is confusingly similar to
Complainant’s ESPN.COM mark, to divert Internet users to a search engine website that
displays a directory of links to third-party websites. Because the website at the disputed
domain name is composed entirely of links to third-party websites, Respondent
is not offering any goods or services on its website. Such use of the disputed domain name does not constitute a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitmate
noncommercial or fair use of the domain name pursuant to 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 Coryn
Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003)
(finding that the respondent was not using the domain names for a bona fide
offering of goods or services nor a legitimate noncommercial or fair use because
the respondent used the names to divert Internet users to a website that
offered services that competed with those offered by the complainant under its
marks).
Complainant asserts that
Respondent is not authorized to use Complainant’s ESPN.COM mark or any other of Complainant’s marks. Furthermore, Respondent’s WHOIS
information, as well as other information in the record, does not suggest that
Respondent is commonly known by the <1033espn.com>
domain name. Therefore, the Panel finds
that Respondent is not commonly known by the disputed domain name under Policy
¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb.
Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <1033espn.com>
domain name, which is confusingly similar to Complainant’s ESPN.COM mark, to
divert Internet users seeking Complainant’s sports entertainment services to a website
containing links to
third-party websites. The Panel
infers that Respondent earns click-through revenues for diverting Internet
users to the third-party websites. Such use of Complainant’s mark and its goodwill
for Respondent’s own commercial gain is evidence of bad faith registration and
use pursuant to Policy ¶ 4(b)(iv). See
State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct.
11, 2000) (finding that the respondent registered the domain name
<statefarmnews.com> in bad faith because the respondent intended to use
the complainant’s marks to attract the public to the website without permission
from the complainant); see also G.D. Searle & Co. v. Celebrex Drugstore,
FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent
registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)
because the respondent was using the confusingly similar domain name to attract
Internet users to its commercial website).
Respondent is using a domain name, that
displays Complainant’s marks numerous times, to operate a commercial website
featuring a directory of links. Due to the
fame of Complainant’s marks and their obvious connection to Complainant’s
well-known sports entertainment services, the Panel finds such use of
Complainant’s marks indicates opportunistic bad faith under Policy ¶ 4(a)(iii). See Harrods
Ltd. v. Harrod’s Closet,
D2001-1027 (WIPO Sept. 28, 2001) (finding that where a mark is so “obviously
connected with well-known products,” its very use by someone with no connection
to these products can evidence opportunistic bad faith); see also Singapore
Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000) (“The domain name
‘<singaporeairlines.com>’ is so obviously connected with a well-known
airline that its very registration and use by someone with no connection to the
airline suggests opportunistic bad faith.
Indeed, it is hard to imagine a more blatant exercise in
‘cybersquatting.’”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
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 <1033espn.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated:
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