Rawlings Sporting Goods Company, Inc. v. B&J c/o Joe Meerman
Claim Number: FA0705000976537
Complainant is Rawlings Sporting Goods Company, Inc. (“Complainant”), represented by Bradley
P. Hartman, of Stinson Morrison Hecker LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <goldgloveaward.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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On May 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 30, 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@goldgloveaward.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 <goldgloveaward.com> domain name is identical to Complainant’s GOLD GLOVE AWARD mark.
2. Respondent does not have any rights or legitimate interests in the <goldgloveaward.com> domain name.
3. Respondent registered and used the <goldgloveaward.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Rawlings Sporting Goods Company, Inc., has registered the GOLD GLOVE AWARD mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 990,449 issued August 6, 1974) in connection with “entertainment services—namely, promoting baseball through the grant of awards to outstanding fielders.”
Respondent registered the <goldgloveaward.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 asserts rights in the GOLD GLOVE AWARD through
registration of the mark with the USPTO.
The Panel finds that Complainant’s timely registration and subsequent
extensive use of the mark for over thirty years sufficiently establishes its rights in the mark pursuant to Policy ¶
4(a)(i). See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
Respondent’s <goldgloveaward.com> domain name
contains Complainant’s protected mark in its entirety, eliminates the spaces
between the three words of Complainant’s protected mark, and adds the generic
top-level domain (“gTLD”) “.com.” The
Panel finds that the elimination of spaces between words of a protected mark
and the addition of a gTLD in a domain name renders that domain name identical
to the GOLD GLOVE AWARD mark pursuant to Policy ¶ 4(a)(i). See Tech. Props., Inc. v. Burris, FA
94424 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In instances where Complainant has made a prima facie case bolstering its
allegations, the burden shifts to Respondent to prove that it has rights or
legitimate interests in accordance with Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
Respondent is using the disputed domain name to resolve to a website that uses Complainant’s mark and that is likely to confuse unsuspecting Internet users as to the source and affiliation of the products that are offered. The Panel finds that Respondent’s attempt to pass itself off as Complainant on its website represents 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 Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
Complainant contends that, to the best of its knowledge,
Respondent is not commonly known by the disputed domain name. A review of Respondent’s WHOIS registration
information reveals that the registrant of the <goldgloveaward.com> domain name is “B&J c/o Joe
Meerman.” Respondent has not proffered
any information to suggest that it is commonly known by the disputed domain
name. Accordingly, the Panel finds that
Respondent is not commonly known by the disputed domain name pursuant to Policy
¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <goldgloveaward.com> domain name resolves to a website that features similar products to those offered by Complainant. Additionally, Complainant’s mark is featured prominently on the website. Consequently, it is likely an unsuspecting Internet user would become confused as to the source and affiliation of the products being offered. The Panel finds that Respondent’s use of the disputed domain name suggests that it is attracting Internet users to its own website for commercial gain, which evinces registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant); see also 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).
Further, it appears to the Panel that Respondent is
attempting to pass itself as affiliated or sponsored by Complainant, as the
website at the disputed domain name prominently displays one of Complainant’s
marks, RAWLINGS. The Panel finds that
such conduct provides additional evidence of bad faith registration and use
pursuant to Policy ¶ 4(a)(iii). See DaimlerChrysler
Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding
that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave
consumers the impression that the complainant endorsed and sponsored the
respondent’s website); see also Am. Int’l Group, Inc. v. Busby, FA 156251
(Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was
registered and used in bad faith where the respondent hosted a website that
“duplicated Complainant’s mark and logo, giving every appearance of being
associated or affiliated with Complainant’s business . . . to
perpetrate a fraud upon individual shareholders who respected the goodwill
surrounding the AIG mark”).
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 <goldgloveaward.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated:
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