DECISION

Vivendi Universal Games and Davidson & Associates, Inc. v. Blizzard Ent

Claim Number:  FA0302000146620

PARTIES

Complainant is Vivendi Universal Games and Davidson & Associates, Inc., Los Angeles, CA (“Complainant”) represented by David J. Steele, of Christie, Parker & Hale LLP. Respondent is Blizzard Ent, Irvine, CA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <blizzard-north.com> registered with Dotster.

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.

Honorable Paul A. Dorf (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 24, 2003; the Forum received a hard copy of the Complaint on February 26, 2003.

On February 25, 2003, Dotster confirmed by e-mail to the Forum that the domain name <blizzard-north.com> is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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 26, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 18, 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@blizzard-north.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 24, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Honorable Paul A. Dorf (Ret.) 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. Respondent’s <blizzard-north.com> domain name is confusingly similar to Complainant’s BLIZZARD mark.

2. Respondent does not have any rights or legitimate interests in the <blizzard-north.com> domain name.

3. Respondent registered and used the <blizzard-north.com> domain name in bad faith.

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

FINDINGS

Complainant holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the BLIZZARD mark (Reg. No. 2,490,187 registered on September 18, 2001) and the BLIZZARD ENTERTAINMENT mark (Reg. No. 2,492,072 registered on September 25, 2001) related to computer game software and instruction manuals sold as a unit. Complainant operates numerous websites, including <blizzard.com> and <battle.net>. Complainant markets goods and services on its websites internationally, generating substantial sales annually.

Respondent registered the <blizzard-north.com> domain name on  January 13, 2003. Respondent is using the disputed domain name to post an identical copy of Complainant’s <battle.net> website to intercept Complainant’s customers’ account names and passwords.

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 draw such inferences it 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 and/or Confusingly Similar

Complainant has established its rights in the BLIZZARD mark through registration with the USPTO with a first use in commerce stated as 1994.

Respondent’s <blizzard-north.com> domain name is confusingly similar to Complainant’s mark because the disputed domain name incorporates Complainant’s mark and simply tacks on a hyphen and the descriptive term “north” to the end of the registered mark. Neither the addition of a hyphen nor a descriptive term clear up the confusing similarity between Respondent’s domain name and Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Teleplace, Inc. v. De Oliveira, FA 95835 (Nat. Arb. Forum Dec. 4, 2000) (finding that the domain names <teleplace.com>, <tele-place.com>, and <theteleplace.com> are confusingly similar to Complainant’s TELEPLACE trademark); see also Parfums Christian Dior v. 1 Netpower, Inc., D2000-0023 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark); see also Pfizer, Inc. v. Papol Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporates the VIAGRA mark in its entirety, and deviates only by the addition of the word “bomb,” the domain name is rendered confusingly similar to Complainant’s mark).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has failed to come forward with a Response with regard to this proceeding. Therefore, the Panel is permitted to accept all reasonable inferences and allegations in the Complaint as true. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant 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”).

Moreover, the Panel is permitted to presume that Respondent has no rights or legitimate interests in the disputed domain name because of Respondent’s refusal to respond to the Complaint. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

Respondent is using the <blizzard-north.com> domain name to redirect Internet users to an identical website in order to intercept Complainant’s customers’ account names and passwords. The Panel infers that Respondent is profiting from the fraudulent collection of account names and passwords, which is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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 AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding that use of the domain name to direct users to other, unconnected websites does not constitute a legitimate interest in the domain name).

There is no evidence in the record and Respondent has failed to invoke any circumstances that demonstrate that Respondent is commonly known by BLIZZARD NORTH or <blizzard-north.com>. Therefore, Respondent has failed to establish that it has rights or legitimate interests in the disputed domain name pursuant to 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 Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

The Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent is using the <blizzard-north.com> domain name to divert Internet users to an identical website in order to intercept Complainant’s customers’ account names and passwords. Respondent’s fraudulent representations demonstrate that Respondent intentionally attempted to attract, for commercial gain, Internet users to the disputed domain name by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the Respondent registered the domain name <statefarmnews.com> in bad faith because Respondent intended to use Complainant’s marks to attract the public to the website without permission from Complainant).

Furthermore, by using an identical website as Complainant’s at the disputed domain name Respondent demonstrates its actual or constructive knowledge of Complainant’s rights in the mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).

The Panel finds that Complainant has established Policy ¶ 4(a)(iii).

DECISION

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

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

Honorable Paul A. Dorf (Ret.) Panelist

Dated:   April 8, 2003