Finish Line, Inc. and its subsidiary Spike's Holdings, Inc. v. XU SHUAI WEI / XUSHUAIWEI
Claim Number: FA1409001577968
Complainant is Finish Line, Inc. and its subsidiary Spike's Holdings, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is XU SHUAI WEI / XUSHUAIWEI (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <finishlne.com>, registered with ENOM, INC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 2, 2014; the National Arbitration Forum received payment on September 2, 2014.
On September 3, 2014, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <finishlne.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. 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 September 3, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 23, 2014 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@finishlne.com. Also on September 3, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 25, 014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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" 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
Policy ¶ 4(a)(i). Complainant registered the FINISH LINE mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,772,105 registered May 18, 1993). Complainant uses the FINISH LINE mark for athletic apparel, notably shoes. Respondent’s <finishlne.com> domain name is confusingly similar to the FINISH LINE mark.
Policy ¶ 4(a)(ii). Respondent is not commonly known by the disputed domain name. Further, Respondent’s use of the domain name does not show rights in the mark as the resolving website features links for competing sports apparel sites, such as “Jordan New Shoes,” “Mens Basketball Shoes Sale,” and “Nike Basketball Shoes Sale.”
Policy ¶ 4(a)(iii). Respondent has engaged in bad faith. The disputed domain name is listed for sale in the amount of $800. Respondent is disrupting Complainant business by promoting links to competing goods. Further, the featured links are likely tied to click-though fees from which Respondent generates revenue. In addition, the <finishlne.com> domain name is a typosquatted version of the FINISH LINE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Finish Line, Inc. and its subsidiary Spike's Holdings, Inc., registered the FINISH LINE mark with the "USPTO" (e.g., Reg. No. 1,772,105 registered May 18, 1993). Complainant uses the FINISH LINE mark for athletic apparel, notably shoes.
Respondent, XU SHUAI WEI / XUSHUAIWEI, registered the <finishlne.com> domain name on May 28, 2013.
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 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.”).
Complainant has rights in the FINISH LINE mark under Policy ¶ 4(a)(i) through registrations with the USPTO. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Respondent’s <finishlne.com> domain name is confusingly similar to the FINISH LINE mark under Policy ¶ 4(a)(i). The domain name differs from the mark by the omission of a single letter “i” and the addition of the generic top-level domain (“gTLD”) “.com.”
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Respondent is not commonly known by the <finishlne.com> domain name under Policy ¶ 4(c)(ii). The WHOIS record identifies “XU SHUAI WEI / XUSHUAIWEI” as registrant of the domain name. See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent’s use of the domain name does not show rights in the mark as the resolving website displays links to competing sports apparel sites, such as “Jordan New Shoes,” “Mens Basketball Shoes Sale,” and “Nike Basketball Shoes Sale.” Respondent is not making a bona fide offering of goods or services pursuant to Policy ¶4(c)(i), or legitimate noncommercial or fair use of the domain name pursuant to Policy ¶4(c)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Respondent ‘s <finishlne.com> domain name is listed for sale in the amount of $800, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name).
Respondent is disrupting Complainant’s business by promoting links to competing goods. Respondent’s promotion of competing links through a confusingly similar domain name is evidence of bad faith under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Complainant argues that the links are likely tied to click-though fees from which Respondent generates revenue. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Here, Respondent’s promotion of competing click-through links shows Policy ¶ 4(b)(iv) bad faith.
The <finishlne.com> domain name is a typosquatted version of the FINISH LINE mark, which further supports a finding of bad faith under Policy ¶ 4(a)(iii). 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).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <finishlne.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 9, 2014
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