Pop Warner Little Scholars, Inc. v. Anonymize, Inc.
Claim Number: FA2209002012385
Complainant is Pop Warner Little Scholars, Inc. (“Complainant”), represented by Gregory N. Brescia of Gordon Rees Scully Mansukhani LLP, New York, USA. Respondent is Anonymize, Inc. (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <popwarner.org>, registered with Epik Inc.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on September 16, 2022. Forum received payment on September 16, 2022.
On September 19, 2022, Epik Inc. confirmed by e-mail to Forum that the <popwarner.org> domain name is registered with Epik Inc. and that Respondent is the current registrant of the name. Epik Inc. has verified that Respondent is bound by the Epik Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 20, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@popwarner.org. Also on September 20, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On October 14, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, 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
Founded in 1929 Complainant, Pop Warner Little Scholars, Inc., is a non-profit organization responsible for promoting youth football, cheer and dance programs for participants across the United States and abroad. Complainant has rights in the POP WARNER mark based upon use since 1929 and registrations with the United States Patent and Trademark Office (“USPTO”). Complainant has operated a website at “www.popwarner.com” since 1996. Respondent’s <popwarner.org> domain name is identical or confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <popwarner.org> domain name. Respondent is not licensed or authorized to use Complainant’s POP WARNER mark and is not commonly known by the domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to link to services in competition with those offered by Complainant. Respondent also provides links that may be related to malicious software.
Respondent registered and uses the <popwarner.org> domain name in bad faith to disrupt Complainant’s business by linking to a competitor website. Additionally, Respondent is attempting to attract to its website Internet users who are searching for Complainant, creating confusion for commercial gain. Finally, Respondent has sought to conceal its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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."
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has shown that it has rights in the POP WARNER mark based upon registrations with the USPTO (e.g., Reg. No. 816,322, registered October 4, 1966). The Panel finds Respondent’s <popwarner.org> domain name to be identical to Complainant’s mark because it contains the POP WARNER mark in its entirety, merely omitting the space between the words and adding the inconsequential generic top-level domain (“gTLD”) “.org”, which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <popwarner.org> domain name was registered on May 25, 2010, many decades after Complainant has shown that its POP WARNER mark had become well-known. It resolves to a website with links entitled “Pop Warner Youth Football”, “Team Messaging App” and “Spirit Wear Fundraiser”. The “Pop Warner Youth Football” link leads to a webpage promoting services competitive with those of Complainant.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <popwarner.org> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s well-known POP WARNER mark when Respondent registered the <popwarner.org> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <popwarner.org> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: October 18, 2022
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