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Generic Top Level Domain Name (gTLD) Decisions |
Showboat, Inc. v. Sports Management
Claim Number: FA0205000114376
PARTIES
Complainant
is Showboat, Inc., Las Vegas, NV,
USA (“Complainant”) represented by David
J. Stewart, of Alston & Bird,
LLP. Respondent is Sports Management, Freeport, BAHAMAS (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <showboatsportsbook.com>,
registered with Tucows, 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.
James
A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on May 22, 2002; the Forum received
a hard copy of the Complaint
on May 28, 2002.
On
May 22, 2002, Tucows, Inc. confirmed by e-mail to the Forum that the domain
name <showboatsportsbook.com>
is registered with Tucows, Inc. and that Respondent is the current registrant
of the name. Tucows, Inc. has verified
that Respondent is bound by the Tucows, 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
May 31, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of June 20,
2002 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@showboatsportsbook.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification,
the Forum transmitted
to the parties a Notification of Respondent Default.
On
July 8, 2002, pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the Forum appointed James
A. Carmody, Esq., as Panelist.
Having
reviewed the communications records, the Administrative Panel (the “Panel”)
finds that the 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 Forum’s Supplemental Rules and any rules and
principles of law that the Panel deems applicable, without the benefit of any
Response
from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred
from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
<showboatsportsbook.com> domain name is confusingly similar to
Complainant’s SHOWBOAT mark.
Respondent
has no rights or legitimate interests in the <showboatsportsbook.com>
domain name.
Respondent
registered and used the <showboatsportsbook.com> domain name in
bad faith.
B.
Respondent
Respondent
failed to submit a Response in this proceeding.
FINDINGS
Complainant owns registered trademarks
with the United States Patent and Trademark Office for the SHOWBOAT mark (Reg.
Nos. 1,078,615;
1,066,734; 1,336,013; 2,123,404; and 2,266,994). Complainant has used the SHOWBOAT mark for
over fifty years in connection with casino, hotel, entertainment and restaurant
services.
Respondent registered the <showboatsportsbook.com>
domain name on September 20, 2002.
Respondent uses the domain name as a link to <worldwager.com>,
which is a website that offers online sports gambling services. Complainant discovered that Respondent also
registered <trumpplazasportsbook.com>, which was transferred to Trump
Hotels &
Casino Resorts Inc. in a previous National Arbitration Forum
decision.
On September 21, 2001, Complainant sent a
cease and desist letter to Respondent.
Complainant never received any response to the letter.
DISCUSSION
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 the 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.
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; and
(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.
Identical and/or Confusingly Similar
Complainant has established its rights to
the SHOWBOAT mark through registration with the United States Patent and
Trademark Office
and continuous use.
Respondent’s <showboatsportsbook.com>
domain name contains Complainant’s entire SHOWBOAT mark with the addition of
the phrase “sportsbook.” The addition
of “sportsbook” to Complainant’s mark does not create a distinct mark because
“sportsbook” has a meaning that relates
to Complainant’s gambling
services. Therefore, Respondent’s
domain name is confusingly similar to Complainant’s mark. See Brown & Bigelow, Inc. v.
Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the
<hoylecasino.net> domain name is confusingly similar to Complainant’s
HOYLE mark, and that the addition of “casino,” a generic word describing the
type of business in which Complainant is engaged, does
not take the disputed
domain name out of the realm of confusing similarity); see also Space Imaging LLC v.
Brownwell,
AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the
Respondent’s domain name combines the Complainant’s
mark with a generic term
that has an obvious relationship to the Complainant’s business).
The Panel finds that Policy ¶
4(a)(i) has been satisfied.
Rights or Legitimate Interests
In light of Complainant’s assertion that
Respondent has no rights or legitimate interests in the disputed domain name
and Respondent’s
failure to respond, the Panel may presume Respondent has no
such rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as
an admission that they have no
legitimate interest in the domain names). Furthermore, when Respondent fails to submit
a Response, the Panel is permitted to make all inferences in favor of
Complainant. See 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”).
Respondent uses the <showboatsportsbook.com>
domain name to link Internet users to a sports gambling website,
<worldwaging.com>. In doing so,
Respondent attempts to confuse and attract Internet users, for its commercial
benefit, searching for Complainant’s gambling
services. Respondent’s use does not constitute a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor does it
constitute
legitimate noncommercial or fair use pursuant to Policy
¶(c)(iii). See Chip Merch., Inc. v. Blue Star Elec.,
D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were
confusingly similar to Complainant’s mark and that
Respondent’s use of the
domain names to sell competing goods was illegitimate and not a bona fide
offering of goods); see also Vapor
Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27,
2001) (finding that Respondent’s commercial use of the domain name to confuse
and divert Internet
traffic is not a legitimate use of the domain name); see
also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D.Mass 2002) (finding that,
because the Respondent's sole purpose in selecting the domain names was to
cause confusion with the
Complainant's website and marks, it's use of the names
was not in connection with the offering of goods or services or any other
fair
use).
Respondent never received
authorization or consent, express or implied, to use Complainant’s SHOWBOAT mark
for any purpose. Respondent is not
commonly known by SHOWBOATSPORTSBOOK or <showboatsportsbook.com>;
Respondent is known to this Panel as Sports Management. Therefore, Respondent does not have any
rights or legitimate interests in the domain name pursuant to Policy ¶
4(c)(ii). See Compagnie
de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
Respondent was not commonly known by the mark and
never applied for a license
or permission from Complainant to use the trademarked name); see also Broadcom Corp. v. Intellifone Corp., FA
96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests
because Respondent is not commonly known by
the disputed domain name or using
the domain name in connection with a legitimate or fair use).
Accordingly, the Panel finds that
Respondent has no rights or legitimate interests in the disputed domain name,
thus, Policy ¶ 4(a)(ii)
has been satisfied.
Registration and Use in Bad Faith
Respondent’s use of the <showboatsportsbook.com>
domain name represents a classic case of bad faith. As previously stated, Respondent uses the domain name to link
Internet users to <worldwager.com>, a sports gambling website. Complainant is in the gaming business, so
Respondent’s trading on Complainant’s mark is done for the purpose of
attracting Complainant’s
potential customers.
Since Respondent uses Complainant’s mark in connection with gambling
services, consumers would likely be confused as to the website’s
sponsorship or
affiliation. Therefore, Respondent’s
use of the <showboatsportsbook.com> domain name constitutes bad
faith under Policy ¶ 4(b)(iv). See
Am. Online, Inc. v. Tencent Comm. Corp.,
FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent
registered and used an infringing domain name to attract
users to a website
sponsored by Respondent); see also Busy
Body, Inc. v. Fitness Outlet, Inc., D2000-0127 WIPO Apr. 22, 2000) (finding
bad faith where Respondent attempted to attract customers to its website,
<efitnesswholesale.com>,
and created confusion by offering similar
products for sale as Complainant); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13,
2000) (finding bad faith where the Respondent attracted users to a website
sponsored by the Respondent
and created confusion with the Complainant’s mark
as to the source, sponsorship, or affiliation of that website).
Respondent’s infringing registration of
<trumpplazasportsbook.com> evidences a pattern of registering marks that
have a connection
to gambling services as a means to capture confused Internet
users. Therefore, Respondent’s past
behavior permits a finding of bad faith registration of the <showboatsportsbook.com>
domain name under Policy ¶ 4(b)(ii). See
Encyclopaedia Britannica Inc. v.
Shedon.com, D2000-0753 (Sept. 6, 2000) (finding bad faith where the
Respondent engaged in the practice of registering domain names containing
the
trademarks of others); see also Harcourt,
Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one
instance of registration of several infringing domain names satisfies
the
burden imposed by the Policy ¶ 4(b)(ii)); see also Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum
Aug. 17, 2000) (finding that the Respondent violated Policy ¶ 4(b)(ii) by
registering multiple domain
names which infringe upon others’ famous and
registered trademarks).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements required under
the ICANN Policy, the Panel concludes that the requested relief should be
hereby
GRANTED.
Accordingly, it
is Ordered that the <showboatsportsbook.com> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated:
July 11, 2002
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