The National Football League v. Above.com Legal
Claim Number: FA1308001512872
Complainant is The National Football League (“Complainant”), represented by Adam Siegartel of Proskauer Rose LLP, New York, USA. Respondent is Above.com Legal (“Respondent”), Australia.[1]
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nflticketexchange.com>, registered with ABOVE.COM, PTY. LTD.
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
David E. Sorkin, Marylee Jenkins, and G. Gervaise Davis III, as Panelists.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 1, 2013; the National Arbitration Forum received payment on August 1, 2013.
On August 5, 2013, ABOVE.COM, PTY. LTD. confirmed by email to the National Arbitration Forum that the <nflticketexchange.com> domain name is registered with ABOVE.COM, PTY. LTD. and that Respondent is the current registrant of the name. ABOVE.COM, PTY. LTD. has verified that Respondent is bound by the ABOVE.COM, PTY. LTD. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 13, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 3, 2013 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@nflticketexchange.com. Also on August 13, 2013, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 26, 2013, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed David E. Sorkin (chair), Marylee Jenkins, and G. Gervaise Davis III as Panelists.
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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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
Complainant is the owner of various NFL-related trademarks. Complainant has used its internationally famous NFL mark for approximately 70 years. In 2009, it began using the mark NFL TICKET EXCHANGE, which was registered on the Principal Register of the U.S. Patent and Trademark Office on July 27, 2010. Complainant uses these marks in connection with the sale of tickets and other goods and services relating to its member football clubs.
Respondent is the registrant of the disputed domain name, <nflticketexchange.com>, registered in September 2011. The disputed domain name directs users to either a parked website containing sponsored links to third-party websites offering tickets to football games and other events, football apparel, and other goods and services; or various third-party websites offering celebrity news, financial information, fashion advice, and other information.
Complainant contends that the disputed domain name is identical to Complainant’s NFL TICKET EXCHANGE trademark; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. In further support thereof, Complainant alleges that it has not authorized Respondent to use its marks in any way; that Respondent is not known by the marks or domain name; and that Complainant has responded to Respondent’s inquiries regarding the domain name by offering to sell it for sums ranging from $35,000 to $100,000.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name <nflticketexchange.com> is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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."
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.
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 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.”).
The disputed domain name is identical to Complainant’s registered NFL TICKET EXCHANGE trademark, but for the omission of spaces and the addition of the top-level domain “.com”. For purposes of paragraph 4(a)(1) of the Policy, the domain name is identical to Complainant’s mark.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Complainant’s unrebutted allegations in this proceeding suffice to meet its prima facie burden, and the Panel therefore finds that Complainant has satisfied its burden of proof on this issue.
The disputed domain name is identical to Complainant’s mark, was registered shortly after Complainant adopted and registered the mark, and is being used in a manner that appears to infringe upon and dilute the mark. Furthermore, Respondent has sought to sell the domain name for sums far exceeding its out-of-pocket costs. Respondent has not come forward with any alternative explanation for its activities. The Panel infers from these facts that the domain name was registered and is being used in bad faith.
Having considered all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nflticketexchange.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Chair
Marylee Jenkins, Panelist
G. Gervaise Davis III, Panelist
Dated: October 7, 2013
[1] Above.com Legal is the nominal Respondent in this matter, being the registrant listed in the Registrar’s Whois database as of August 5, 2013, the date on which the Registrar confirmed the domain name registration. It appears that the registrant previously had been listed as “Protection Domain” with an address in Panama. For purposes of this proceeding, “Respondent” may refer to either or both of these entities.
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