Rawlings Sporting Goods Company, Inc. v. KingWeb Inc.
Claim Number: FA0610000812124
Complainant is Rawlings Sporting Goods Company, Inc. (“Complainant”), represented by Bradley P Hartman, of Stinson Morrison Hecker LLP, 1850 N. Central Ave., Sutie 2100, Phoenix, AZ 85004-4584. Respondent is KingWeb Inc. (“Respondent”), 624 Lakeshore Road E., Suite #110, Toronto, ON L5G 1J4, Canada.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <goldglove.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 4, 2006; the National Arbitration Forum received a hard copy of the Complaint on October 10, 2006.
On October 11, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <goldglove.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 October 17, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 6, 2006 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@goldglove.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 14, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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 <goldglove.com> domain name is identical to Complainant’s GOLD GLOVE mark.
2. Respondent does not have any rights or legitimate interests in the <goldglove.com> domain name.
3. Respondent registered and used the <goldglove.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Rawlings Sporting Goods Company, Inc., holds a registration with the United States Patent and Trademark Office (“USPTO”) for the GOLD GLOVE mark (Reg. No. 1,291,345 issued August 21, 1984). Complainant utilizes the mark in connection with its sporting goods business, specifically in connection with baseball gloves and mitts and in connection with the promotion of the game of baseball by presenting awards to outstanding fielders.
Respondent registered the <goldglove.com> domain name on September 9, 1998. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website composed entirely of links to third-party websites. Many of the third-party websites offer goods or services in direct competition with Complainant, for example “baseball gloves,” “baseball equipment” and “sporting goods.” Other links are unrelated to Complainant’s business and include “travel,” “finance” and “home.”
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 holds a USPTO registration for the GOLD GLOVE mark which predates Respondent’s registration of the disputed domain name. The Panel finds that Complainant has established rights in the GOLD GLOVE mark as required by Policy ¶ 4(a)(i). See 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."); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <goldglove.com> domain name is
identical to Complainant’s GOLD GLOVE mark.
The disputed domain name includes Complainant’s mark in its entirety
without any alteration. The addition of
the generic top-level domain “.com” does not distinguish the disputed domain
name from Complainant’s mark since all domain names require the addition of a
top-level domain. The Panel finds that
the disputed domain name is identical to Complainant’s mark pursuant to Policy
¶ 4(a)(i). See Pomellato S.p.A v.
Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com>
identical to the complainant’s mark because the generic top-level domain (gTLD)
“.com” after the name POMELLATO is not relevant); see also Entrepreneur
Media, Inc. v. Smith, 279 F.3d 1135,
1146 (9th Cir. 2002) (“Internet users
searching for a company’s Web site often assume, as a rule of thumb, that the
domain name of a particular company will be the company name or trademark
followed by ‘.com.’”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and
legitimate interests in the disputed domain name. Complainant’s assertion constitutes a prima facie case for
purposes of the Policy and shifts the burden to Respondent to demonstrate that
it does have rights or legitimate interests in the disputed domain name. Respondent failed to submit a Response in
this proceeding, depriving the Panel of evidence and facts that might support
Respondent’s rights or legitimate interests.
The Panel views Respondent’s failure to respond as evidence that Respondent
lacks rights or legitimate interests.
Nonetheless, the Panel will evaluate the available evidence to determine
whether Respondent has rights or legitimate interests as contemplated by Policy
¶ 4(c). See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s
Submission constitutes a prima facie case under the Policy, the burden
effectively shifts to Respondent. Respondent’s failure to respond means that
Respondent has not presented any circumstances that would promote its rights or
legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see
also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Respondent is using the disputed domain name to operate a website composed entirely of links to third-party websites. Many of the linked websites appear to be commercial websites purporting to offer Complainant’s goods for sale, or offering competing goods. The remaining linked websites are unrelated to Complainant’s business. Presumably, Respondent is receiving pay-per-click referral fees from these linked websites. The Panel finds that such use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also 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 Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
There is no available evidence that Respondent is commonly
known by the <goldglove.com> domain name. Respondent’s WHOIS information identifies
Respondent as “KingWeb, Inc.,” a name with no apparent relationship to the
disputed domain name. Further,
Complainant asserts without contradiction that Respondent is not affiliated
with Complainant and does not have authorization from Complainant to reflect
Complainant’s mark in a domain name.
The Panel finds that Complainant is not commonly known by the disputed
domain name as contemplated by 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 Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David
Sanders.’ Given the WHOIS domain name
registration information, Respondent is not commonly known by the
[<awvacations.com>] domain name.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <goldglove.com> domain name to redirect Internet users away from Complainant’s genuine websites to Respondent’s website. Misdirected Internet users finding themselves at Respondent’s website may follow the links to third-party commercial websites in direct competition with Complainant, taking their business to those competitors and away from Complainant. The Panel finds that such use disrupts Complainant’s business evidencing bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Respondent’s <goldglove.com> domain name is
confusingly similar to Complainant’s GOLD GLOVE mark. Respondent is using that confusing similarity to attract Internet
users to its website. Respondent is
then presumably capitalizing from that confusion by collecting pay-per-click
referral fees from the websites linked on its website. The Panel finds that Respondent’s use
demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated
Newspapers Ltd. v. Domain Manager, FA
201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the
<mailonsunday.com> domain name is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's
competitors and Respondent presumably commercially benefited from the
misleading domain name by receiving ‘click-through-fees.’”); see also AltaVista Co. v. Krotov, D2000-1091
(WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s
domain name resolved to a website that offered links to third-party websites
that offered services similar to the complainant’s services and merely took
advantage of Internet user mistakes).
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 <goldglove.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 20, 2006
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