International Olympic Committee and Comitato Organizzatore XX Giochi Olimpici v. Dr. Marco Ferro
Claim Number: FA0512000604980
Complainants are International Olympic Committee and Comitato Organizzatore XX Giochi Olimpici (collectively, “Complainant”), represented by James L. Bikoff, of Silverberg Goldman & Bikoff, LLP, 1101 30th St., N.W., Suite 120, Washington, DC 20007. Respondent is Dr. Marco Ferro (“Respondent”), P.O. Box 749 Null, Fribourg, CH, 1700, CH.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <turin2006.com>, registered with Network Solutions, 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.
Mark McCormick as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 5, 2005; the National Arbitration Forum received a hard copy of the Complaint on December 6, 2005.
On December 7, 2005, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <turin2006.com> domain name is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 December 9, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 29, 2005 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 email@example.com by e-mail.
A timely Response was received and determined to be complete on December 29, 2005.
A timely Additional Submission was received from Complainant January 3, 2006 and was in compliance with The Forum’s Supplemental Rule #7.
An untimely additional submission was received from Respondent on January 17, 2006.
On January 5, 2006, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Mark McCormick as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant contends that the <turin2006.com> domain name is identical to Complainant’s TURIN 2006 mark because Respondent’s domain name incorporates Complainant’s mark entirely with the only difference being the addition of “.com.” On this basis, Complainant contends the domain name is identical or confusingly similar to its mark. Complainant also contends that Respondent cannot establish rights or legitimate interests in the disputed domain name because he is using it to redirect Internet users interested in Complainant’s products and services to Respondent’s website that features commercial links unrelated to Complainant. Complainant also contends that Respondent is not commonly known by the <turin2006.com> domain name and has not been licensed or otherwise authorized by Complainant to use the TURIN 2006 mark. Complainant alleges that Respondent is in bad faith because he is using the confusingly similar domain name to benefit commercially by redirecting internet users to Respondent’s website.
Respondent does not attack Complainant’s contention that his <turin2006.com> domain name is identical or confusingly similar to Complainant’s mark. Respondent contends, however, that he has legitimate interests in the disputed domain name because of his intention to use it to provide information about a musical group called Turin Brakes and intends to use the domain name to provide information about the group’s 2006 tour dates. Respondent denies he is in bad faith because he selected it in good faith and intends to use it for legitimate purposes.
C. Additional Submissions
In its additional submission, Complainant points out that sometime between the time the Complaint was filed and December 11, 2005, Respondent altered his website. He removed the commercial search engine pages that had been directing visitors to travel services, internet gambling sites and companies offering tickets for the Turin 2006 Olympic Winter Games and replaced the website with the “shell” of a fan club website for the rock band Turin Brakes. Complainant also disputes Respondent’s assertion that he was unaware of Complainant’s TURIN 2006 mark. Complainant alleges that Respondent was notified by its legal department in May and June 2005 of the rights of Complainant in the mark.
Respondent filed an additional submission on January 17, 2006 in which he contends Complainant did not complain to him before filing the present Complaint with The Forum. He also offers an explanation for not having yet developed his website to advertise the Turin Brakes group.
The domain name is identical to Complainant’s TURIN 2006 mark because it incorporates it entirely, with the only difference being the addition of the generic domain “.com.” Respondent used the domain name to redirect Internet users interested in Complainant’s products and services to his website for commercial purposes. No dispute exists that he is not commonly known by his <turin2006.com> domain name and has not been licensed or permitted by Complainant to use Complainant’s mark. He did not change the links to commercial sites until after the Complaint was filed in this case. Prior to that date, nothing on the website suggested in any way that it had anything to do with the Turin Brakes musical group. Respondent sought to capitalize on his identical domain name from the valuable goodwill that Complainant established in its mark by using the confusingly similar domain name to attract Internet users to the commercial links on his website.
Respondent’s additional submission was untimely and will not be considered. If it were considered, it would not affect the findings.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
No dispute exists that the domain name is confusingly similar to Complainant’s mark within the meaning of Policy ¶ 4(a)(i). Even if the issue had been disputed, it is clear the domain name is identical within the meaning of the Policy. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000).
Because Respondent used the <turin2006.com> domain name to redirect Internet users interested in Complainant’s products and services that prior to the Complaint being filed in this case featured commercial links unrelated to Complainant, it is obvious Respondent was using his domain name to divert Internet users to his website for commercial purposes. This was not a non-commercial or fair use. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003). Respondent has no rights or legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See RMO. Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001).
Respondent’s explanation for his registration of the domain name is incredible in view of the circumstantial evidence that he did not use it for any purpose relating to the Turin Brakes musical group but, instead, used it for improper commercial purposes before the Complaint in this case was filed. Moreover, he did not even at that point use it for the purpose he asserts he registered it and instead merely states an intention to use it for that purpose in the future. His bad faith pursuant to Policy ¶ 4(b)(iv) has been established. See Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <turin2006.com> domain name be TRANSFERRED from Respondent to Complainant.
Mark McCormick, Panelist
Dated: January 20, 2006
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