Under Armour, Inc. v. JEFF RANDALL
Claim Number: FA1410001585022
Complainant is Under Armour, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is JEFF RANDALL (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unerarmour.com>, registered with eNom, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 15, 2014; the National Arbitration Forum received payment on October 15, 2014.
On October 16, 2014, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <unerarmour.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 October 16, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 5, 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@unerarmour.com. Also on October 16, 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 November 12, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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
1. Respondent’s <unerarmour.com> domain name is confusingly similar to Complainant’s UNDER ARMOUR mark.
2. Respondent does not have any rights or legitimate interests in the <unerarmour.com> domain name.
3. Respondent registered and uses the <unerarmour.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
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.”).
The Panel finds that Complainant’s USPTO registrations of its UNDER ARMOUR mark satisfy the requirements of Policy ¶ 4(a)(i), even though the record indicates that Respondent operates in Panama. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Respondent’s <unerarmour.com> domain name is confusingly similar to Complainant’s UNDER ARMOUR mark because Respondent has simply dropped the letter “d” from the mark. Respondent has also attached a generic top-level domain (“gTLD”) “.com” to the mark. Previous panels have routinely found that a domain name differing from a mark by only a single letter is considered confusingly similar, and that the affixation of a gTLD is irrelevant to the Policy ¶ 4(a)(i) analysis. See Keystone Publ’g., Inc. v. UtahBrides.com, D2004-0725 (WIPO Nov. 17, 2004) (finding that the <utahwedding.com> domain name was confusingly similar to the complainant’s UTAHWEDDINGS.COM mark because the domain name simply lacked the letter “s”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). The Panel finds that Respondent’s <uneramour.com> domain name is confusingly similar to Complainant’s UNDER ARMOUR mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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 interests in the subject domain names.”).
Complainant
alleges that Respondent lacks rights or legitimate interests in the disputed
domain name, and is not commonly known by the <unerarmour.com>
domain name. The WHOIS information identifies “Jeff Randall” as the registrant
of the disputed domain name. Complainant states that Respondent is neither
licensed nor authorized to use the UNDER ARMOUR mark. Given the lack of
evidence to infer otherwise, the Panel finds that Respondent is not commonly
known by the <unerarmour.com> domain name pursuant to Policy ¶
4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb.
Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and
legitimate interests in the <emitmortgage.com> domain name as the
respondent was not authorized to register domain names featuring the
complainant’s mark and failed to submit evidence that it is commonly known by
the domain name).
Complainant also argues that Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. Complainant asserts that the disputed domain name currently redirects Internet users to a website that contains a variety of different links to third-party websites, some of which directly compete with Complainant. Previous panels have refused to find a bona fide offering of goods or services, or a legitimate noncommercial or fair use of a disputed domain name, where the respondent engages in preying on the confusing similarity of the domain name with a complainant’s mark. See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)). Thus, the Panel finds that Respondent has not provided a bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(i) and Policy¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent has placed a general offer to sell the disputed domain name on its website. Generally, panels treat offers to sell a disputed domain name as evidence of bad faith pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Thus, the Panel finds that Respondent’s general offer to sell the disputed domain name is consistent with a finding of bad faith pursuant to Policy ¶4(b)(i).
Respondent uses the disputed domain name to redirect Internet users to a directory website containing commercial links to the websites of complainant’s competitors represents, disrupting Complainant’s business. The Panel finds that this is bad faith registration and use under Policy ¶ 4(b)(iii)). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent uses the disputed domain name to redirect Internet users to its own website for commercial gain, further evidence of bad faith under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
Respondent’s registration and use of the <uneramour.com> domain name constitutes typosquatting, meant to take advantage of typographical errors, and motivated by bad faith. 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).”) The Panel finds that Respondent’s typosquatting is bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <unerarmour.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 18, 2014
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