Boone and Crockett Club v. Jucco Holdings
Claim Number: FA0705000992124
Complainant is Boone and Crockett Club (“Complainant”), represented by Floyd
R. Nation, 1111 Louisiana, 25th Floor, Houston, TX 77002. Respondent is Jucco Holdings (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <booneandcrocketclub.com>, registered with Nameking.com, 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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On May 29, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 18, 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@booneandcrocketclub.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 <booneandcrocketclub.com> domain name is confusingly similar to Complainant’s BOONE AND CROCKETT CLUB mark.
2. Respondent does not have any rights or legitimate interests in the <booneandcrocketclub.com> domain name.
3. Respondent registered and used the <booneandcrocketclub.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Boone and Crockett Club, provides services in connection with the conservation of wildlife and natural resources and sells various goods related to big game hunting, including books, knives, clothing, firearms and ammunition. Complainant has been offering these goods and services under the BOONE AND CROCKETT CLUB mark since 1893 and has been using the mark continuously ever since. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the BOONE AND CROCKETT CLUB mark (Reg. No. 2,000,055 issued September 10, 1996).
Respondent, Jucco Holdings, registered the <booneandcrocketclub.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’s registration of the BOONE AND CROCKETT CLUB mark with the USPTO sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., 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.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s <booneandcrocketclub.com>
domain name is confusingly similar to Complainant’s BOONE AND CROCKETT CLUB
mark as the disputed domain name is a common misspelling of Complainant’s mark
and does not change the overall impression of the mark. The disputed domain name simply deletes one
“t” from the end of the word “crockett” in Complainant’s mark. Therefore, Respondent’s <booneandcrocketclub.com> domain name is confusingly similar
to Complainant’s mark under Policy ¶ 4(a)(i). See Compaq Info. Techs.
Group, L.P. v. Seocho, FA
103879 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant must initially prove that Respondent lacks rights or legitimate interests in the disputed domain name. Once Complainant has established a prima facie case, however, the burden shifts to Respondent to show that it does have rights or legitimate interests in the <booneandcrocketclub.com> domain name. In this case, the Panel finds that Complainant has made a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the 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 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 failure to answer the Complaint raises the
presumption that Respondent lacks rights or legitimate interests in the
disputed domain name. See Charles Jourdan Holding AG v. AAIM,
D2000-0403 (WIPO
There is no evidence in the record, including Respondent’s WHOIS information, to suggest that Respondent is commonly known by the <booneandcrocketclub.com> domain name. Moreover, Respondent is not licensed or authorized by Complainant to use its BOONE AND CROCKETT CLUB mark for any purpose. Therefore, Respondent lacks rights or legitimate interests in the disputed 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 Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Respondent is using the <booneandcrocketclub.com>
domain name to redirect Internet users to a website displaying links to
related and unrelated third-party websites, some of which are in direct
competition with Complainant’s business.
Complainant alleges that Respondent is profiting from this website
through the accrual of click-through fees.
This does not qualify as 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). See TM Acquisition Corp. v.
Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002)
(finding that the respondent’s diversionary use of the complainant’s marks to
send Internet users to a website which displayed a series of links, some of
which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum Sept. 30, 2003)
(“Respondent's demonstrated intent to divert Internet users seeking
Complainant's website to a website of Respondent and for Respondent's benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it
is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The website that resolves from the disputed domain name
displays links to related and unrelated third-party websites, and Respondent
presumably earns click-through fees from these links. Respondent is therefore benefiting
commercially from the likelihood that Internet users will confuse the source
and affiliation of the <booneandcrocketclub.com>
domain name with Complainant’s mark.
Such a practice indicates that Respondent has registered and is using
the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“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).”);
see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003)
(“Registration and use of a domain name that incorporates another's mark with
the intent to deceive Internet users in regard to the source or affiliation of
the domain name is evidence of bad faith.”).
In addition, Respondent is using
the <booneandcrocketclub.com> domain
name to redirect Internet users to a website displaying links to the websites
of Complainant’s direct competitors.
Such use also constitutes a disruption of Complainant’s business and
qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb.
Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad
faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a
competitor of Complainant . . .”); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Furthermore, Respondent has been the respondent in several
previous UDRP decisions in which the disputed domain names in those cases were
transferred from Respondent to the respective complainants. See American Airlines, Inc. v. Jucco Holdings, FA 914853 (Nat. Arb. Forum
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 <booneandcrocketclub.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: June 30, 2007
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