The Finish Line, Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain Admin
Claim Number: FA0904001260276
Complainant is The Finish Line, Inc. (“Complainant”), represented by , of CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <finshline.com>, registered with Fabulous.com Pty Ltd.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 30, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 1, 2009.
On April 30, 2009, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <finshline.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 5, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 26, 2009 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@finshline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <finshline.com> domain name is confusingly similar to Complainant’s FINISH LINE mark.
2. Respondent does not have any rights or legitimate interests in the <finshline.com> domain name.
3. Respondent registered and used the <finshline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Finish Line, Inc., is a national retailer with over 700 stores under the FINISH LINE name. Complainant specializes in footwear and has continuously used its FINISH LINE mark since 1981. Complainant has registered its FINISH LINE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,772,105 issued May 18, 1993). Complainant also operates over the Internet at the <finishline.com> domain name.
Respondent registered the <finshline.com> domain name on August 30, 2000. The disputed domain name resolves to a website that displays click-through advertising, including links for Complainant’s competitors.
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.
The Panel finds that Complainant’s registrations of the
FINISH LINE mark with the USPTO sufficiently establish Complainant’s rights in
the mark pursuant to Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v.
Bonds, FA 873143
(Nat. Arb.
Forum Feb. 16, 2007) (finding that a trademark registration adequately
demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Reebok Int’l Ltd. v.
Respondent’s <finshline.com> domain name contains Complainant’s mark while omitting an “i” from the FINISH element and adding the generic top-level domain “.com.” The addition of “.com” is irrelevant under the Policy. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Moreover, the omission of a letter from the mark is insufficient to render a disputed domain name distinct from a mark. See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
Complainant contends that Respondent has no license or
authorization to use Complainant’s mark.
Moreover, the WHOIS information lists Respondent as “Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain
Admin.” Therefore, the Panel
finds that it lacks sufficient evidence to find that Respondent is commonly
known by the disputed domain name, and therefore finds that Respondent lacks
rights and legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not
commonly known by the <cigaraficionada.com> domain name under Policy ¶
4(c)(ii) based on the WHOIS information and other evidence in the record); see also Coppertown Drive-Thru
Sys., LLC v. Snowden, FA 715089 (Nat.
Arb. Forum July 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name).
The disputed domain resolves to a pay-per-click advertising website wherein third parties, including Complainant’s competitors, are promoted via hyperlink. The Panel infers that Respondent obtains commercial benefit through the receipt of referral fees, and therefore holds that the use of a confusingly similar disputed domain name for a pay-per-click venture is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent has engaged in the practice known as
“typosquatting.” This occurs when domain
names are registered with the intent of targeting Internet users who commit
typographical errors. This practice
constitutes evidence of Respondent’s lack of rights and legitimate interests
under Policy ¶ 4(a)(ii). See LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum Aug. 14,
2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of the complainant's LTD COMMODITIES
mark and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also IndyMac
Bank F.S.B. v. Ebeyer, FA 175292
(Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and
legitimate interests in the disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The corresponding website for the disputed domain name displays
links and advertisements for Complainant’s competitors. The Panel finds that Respondent primarily
intended to disrupt Complainant’s Internet operations for commercial gain
through the pay-per-click endeavor. This
demonstrates Respondent’s bad faith registration and use under Policy ¶ 4(b)(iii). See
This commercial gain that Respondent obtains through the
accrual of referral fees allows the Panel to find that Respondent engaged in
bad faith registration and use under Policy ¶ 4(b)(iv). Respondent’s confusingly similar disputed
domain name has created a likelihood of confusion as to Complainant’s source or
affiliation with the disputed domain name and corresponding website. See
The Panel has determined that Respondent has engaged in
typosquatting. The Panel need only note
here that typosquatting is generally considered as sufficient evidence itself
of bad faith registration and use under Policy ¶ 4(a)(iii). The Panel so finds in the instant case. See Zone Labs,
Inc. v. Zuccarini, FA 190613 (Nat.
Arb. Forum Oct. 15, 2003) (“Respondent’s
registration and use of [the <zonelarm.com> domain name] that capitalizes
on the typographical error of an Internet user is considered typosquatting.
Typosquatting, itself is evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).”); see also Dermalogica,
Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com>
domain name was a “simple misspelling” of the complainant's DERMALOGICA
mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶
(a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <finshline.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: June 23, 2009
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