DECISION

The Sports Authority Michigan, Inc. v. thesprotsauthority.com a/k/a Hanna El Hinn

Claim Number:  FA0302000145208

PARTIES

Complainant is The Sports Authority Michigan, Inc., Ft. Lauderdale, FL, USA (“Complainant”) represented by Robert S. Gurwin of Rader, Fishman & Grauer PLLC. Respondent is thesprotsauthority.com a/k/a Hanna El Hinn, Broummana, LEBANON (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thesprotsauthority.com>, registered with Gandi.

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 7, 2003; the Forum received a hard copy of the Complaint on February 7, 2003.

On February 21, 2003, Gandi confirmed by e-mail to the Forum that the domain name <thesprotsauthority.com> is registered with Gandi and that Respondent is the current registrant of the name. Gandi has verified that Respondent is bound by the Gandi 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 February 21, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 13, 2003, 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@thesprotsauthority.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 March 20, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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 makes the following assertions:

1. The domain name registered by Respondent, <thesprotsauthority.com>, is confusingly similar to Complainant’s THE SPORTS AUTHORITY mark.

2. Respondent has no rights or legitimate interests in the <thesprotsauthority.com> domain name.

3. Respondent registered and used the <thesprotsauthority.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, The Sports Authority Michigan, Inc., is the largest national full-line sporting goods retailer in the United States. It operates 201 retail stores in the United States, 35 in Japan, and 7 in Canada. It operates its business under the THE SPORTS AUTHORITY mark, and has done so since its registration of the mark on the Principal Register of the U.S. Patent and Trademark Office (“USPTO”) on February 28, 1989 (U.S. Reg. No. 1,527,526). Under this mark, Complainant promotes its own stores, and also advertises, promotes and sponsors a wide variety of amateur and professional sports teams, events, and arenas. Complainant totalled sales over $1.4 billion in 2001.

Complainant has operated a web presence at the <sportsauthority.com> domain name since July of 1995. Since registering its first domain name, Complainant has proceeded to register over one hundred additional domain names for its commercial use, including the <thesportsauthority.com> domain name. Complainant’s <thesportsauthority.com> domain name was named the #2 overall shopping website on the Internet in 2000.

Respondent, thesprotsauthority.com a/k/a Hanna El Hinn, registered the <thesprotsauthority.com> domain name on October 1, 2001, but is not licensed or authorized to use Complainant’s THE SPORTS AUTHORITY mark for any purpose. Respondent posts nothing on its website other than a hyperlink to Complainant’s website, imbedded in an unauthorized reproduction of Complainant’s logo. Along with linking its website to Complainant’s website, Respondent has signed up for Complainant’s affiliate program, and receives a commission from each sale completed at Complainant’s website by any Internet users directed there from the disputed domain name.

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules.

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.

Identical to and/or Confusingly Similar

Complainant has established in this proceeding that it has rights in the THE SPORTS AUTHORITY mark through registration with the USPTO, as well as through widespread and continuous use of the mark in commerce.

The domain name registered by Respondent, <thesprotsauthority.com>, is confusingly similar to Complainant’s THE SPORTS AUTHORITY mark. The only distinguishing feature is Respondent’s transposition of the letters “o” and “r” in the word SPORTS in the disputed domain name. Such a minor spelling change, duplicating a common typographical error, does not create a distinctive domain name for purposes of Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).

Accordingly, the Panel finds that the <thesprotsauthority.com> domain name is confusingly similar to Complainant’s THE SPORTS AUTHORITY mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Complainant has the initial burden of demonstrating that Respondent has no rights or legitimate interests in the disputed domain name. Complainant can meet this burden, thus shifting it to Respondent, by showing that none of the three enumerated protections for domain name registrants in Policy ¶ 4(c)(i)-(iii) apply to Respondent. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).

Respondent uses the <thesprotsauthority.com> domain name to redirect Internet users to Complainant’s own website. As Respondent’s domain name is a simple misspelling of Complainant’s trademark and website, it is likely that every Internet user who accidentally routes through Respondent’s website was actually intending to reach Complainant’s website. Respondent takes advantage of this fact with its membership in Complainant’s affiliates program, receiving a commission from Complainant each time an Internet user misspells Complainant’s domain name. Such use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding Respondent had no rights or legitimate interests pursuant to Policy  ¶ 4(a)(ii) where it used the domain name <deluxeform.com> to redirect users to Complainant’s <deluxeforms.com> domain name and to receive a commission from Complainant through its affiliate program); see also Gorstew Ltd. v. Carribean Tours & Cruises, FA 94927 (Nat. Arb. Forum July 28, 2000) (finding that Respondent’s use of the disputed domain name to sell the services of Complainant or to attract customers to Complainant, presumably for which Respondents would be paid a fee, is classic trademark infringement, even if the result of same is that some revenue flows to Complainant, the owner of the marks).

Respondent is able to demonstrate rights and legitimate interests in a domain name by showing that it was “commonly known by” the domain name pursuant to Policy ¶ 4(c)(ii). Here, Respondent’s WHOIS contact information lists its name as “thesprotsauthority.com.” However, considering that Respondent’s domain name is a mere misspelling of Complainant’s famous THE SPORTS AUTHORITY mark and considering the nature of Respondent’s use of the domain name, the Panel is permitted to infer that Respondent was not “commonly known by” the name prior to registration of the domain name, as contemplated by Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Nike, Inc. v. B. B. de Boer, D2000-1397 (WIPO Dec. 21, 2000) (finding no rights or legitimate interests where one “would be hard pressed to find a person who may show a right or legitimate interest” in a domain name containing Complainant's distinct and famous NIKE trademark).

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <thesprotsauthority.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered and used the <thesprotsauthority.com> domain name in bad faith. Respondent intentionally registered a confusingly similar variation of Complainant’s mark in order to snare Internet users who accidentally transpose the letters “r” and “o” when attempting to reach Complainant’s <thesportsauthority.com> domain name. This, along with Respondent’s unauthorized use of Complainant’s design mark on its webpage, fosters a likelihood of confusion as to the source of sponsorship of Respondent’s website. In using this likelihood of confusion to earn a commission from Complainant’s affilates program, Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).  See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding Respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to Complainant’s <deluxeforms.com> domain name, thus receiving a commission from Complainant through its affiliate program); see also The Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (stating that, “Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy”).

The Panel thus finds that Respondent registered and used the <thesprotsauthority.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <thesprotsauthority.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Carolyn Marks Johnson, Panelist

Dated: April 3, 2003

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