National Arbitration Forum
DECISION
ALPITOUR S.p.A. v. Ali
Albloushi
Claim Number: FA0701000888651
PARTIES
Complainant is ALPITOUR S.p.A. (“Complainant”), represented by Chiara
Sartori, of TORTONESE-PENE VIDARI-BIAGI Studio Legale,
Piazza Solferino n. 10, Torino 10121
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bravoclub.com>, registered with Go Daddy
Software, Inc.
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.
Terry F. Peppard as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on January 16, 2007; the
National Arbitration Forum received a hard copy of the Complaint on January 17, 2007.
On January 16, 2007, Go Daddy Software, Inc. confirmed by e-mail to
the National Arbitration Forum that the <bravoclub.com> domain name is
registered with Go Daddy Software, Inc.
and that the Respondent is the current registrant of the name. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. 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 January 18, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of February 7, 2007, 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@bravoclub.com by
e-mail.
A timely Response was received and determined to be complete on February 7, 2007.
On February 12, 2007, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Terry F. Peppard as sole Panelist
in this proceeding.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent
to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends, among other things, that:
Complainant holds trademark registrations with the pertinent Italian
and other national authorities, including those of Zanzibar, Turkey, Tunisia
and the Dominican Republic, for the mark BRAVO CLUB, all of which predate
Respondent’s registration of the disputed domain name.
Its trademarks are used by Complainant in connection with its tour
operating and hotel services businesses, which have become among the largest in
The disputed domain name is substantively identical to Complainant’s
trademark.
Complainant has not given Respondent permission to use its BRAVO CLUB
trademark in a domain name or otherwise.
The website maintained at Respondent’s domain name contains a
collection of links to other sites not affiliated with Complainant, some of
which are associated with businesses which compete directly with that of
Complainant.
Respondent’s use of the disputed domain name creates confusion among
Internet users as to possible affiliation of the domain with Complainant.
Respondent receives click-through fees for redirecting Internet users
to the websites associated with the links maintained on its website.
Respondent’s registration and use of the contested domain name is in
bad faith.
B. Respondent
Respondent contends, among other things, that:
Respondent purchased the disputed domain name in 2004, after it had
been dropped by another holder.
Later Respondent parked the domain in order to acquire revenues to
compensate for its cost of purchase.
Respondent’s purpose in purchasing the domain name was to establish a
forum for fans of the Atlanta Braves baseball team.
FINDINGS
(1) the disputed domain name registered by
Respondent is substantively identical to a trademark in which Complainant has
rights;
(2) Respondent has no rights or legitimate
interests in respect of the domain name; and
(3) the same domain name was registered and is
being used by Respondent in bad faith.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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
We first note that Complainant has rights in its BRAVO CLUB trademark
sufficient for purposes of the Policy by virtue of the mark’s registration in
We next observe that Respondent does not deny
that the disputed domain name is substantively identical to Complainant’s
registered mark. Nor could Respondent
credibly do so, inasmuch as the only differences between the mark and the
contested domain name are the elimination of a space between the components of
the mark and the addition of a top level domain name. It is well established that such differences
are of no moment for analysis under the Policy because:
[S]paces are
impermissible in domain names and a generic top-level domain such as ‘.com’ or
‘.net’ is required in domain names.
See
also Busy Body, Inc. v. Fitness Outlet
Inc., D2000-0127 (WIPO Apr. 22, 2000) (“[T]he addition of the
generic top-level domain (gTLD) name ‘.com’
is . . . without legal significance since use of a gTLD is
required of domain name registrants . . . .”).
Therefore,
Complainant has met its obligations of proof under Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Policy ¶ 4(a)(ii) requires Complainant to
show that Respondent has no rights to or legitimate interests in the subject
domain name. However:
Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name. Document Techs., Inc. v. Int’l Electronic Commn’cs Inc., D2000-0270 (WIPO June 6, 2000)
To the same effect,
see Hanna-Barbera Prods., Inc. v.
Entm’t Commentaries,
FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Complainant has made out a prima facie case under this
heading. In reply, Respondent asserts
only that it has purchased the subject domain, that it is presently attempting
to recoup its costs of acquisition of the domain, and that it has the long term
goal of creating a website for fans of the Atlanta Braves baseball team. Respondent does not deny that it is presently
using a domain name substantively identical to Complainant’s mark for what is
essentially a commercial purpose, nor does Respondent deny that it has no
permission for this use, nor does it deny that links on its website connect to
websites promoting businesses competing with that of Complainant.
On these facts, Respondent’s behavior cannot be said to constitute a bona fide offering of goods or services comporting with the provisions of Policy ¶ 4(c)(i). See Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that a respondent’s use of domain names confusingly similar to a complainant’s WAL-MART mark to divert Internet users seeking that complainant’s goods and services to websites competing with its business did not constitute 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 The Royal Bank of Scot. Group v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006).
Moreover, Respondent makes no effort to
suggest that it has been commonly known by the subject domain name within the
contemplation of Policy ¶ 4(c)(ii).
Finally, Respondent’s suggestion to the effect
that its ultimate purpose in acquiring the domain in issue is to create a fan
forum for supporters of the Atlanta Braves baseball team is palpably
incredible. As with its other
allegations, Respondent offers no proof in support of this assertion. Indeed, Respondent, reportedly a resident of
For these reasons, we conclude that Complainant’s
proofs satisfy Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
It would be enough under this heading to say that Respondent is taking advantage of the
confusing similarity between the disputed domain name and Complainant’s BRAVO CLUB mark in order
to profit from the goodwill associated with the mark. This is plain from the undisputed fact that
Respondent redirects Internet users seeking Complainant’s products and services
to a website with links to competing businesses. Many panels have considered such registration
and use to be in bad faith under Policy ¶ 4(b)(iv), and we agree. See
Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006)
(finding bad faith registration and use under Policy ¶ 4(b)(iv) where a
respondent diverted Internet users searching for a complainant to its own
website and likely profited from click-through fees); see also Nokia
Corp. v. Private, D2000-1271
(WIPO Nov. 3, 2000).
To this we would add that it appears that Respondent registered
the <bravoclub.com> domain name with at
least constructive knowledge of Complainant’s rights in the BRAVO CLUB
trademark by virtue of Complainant’s prior registration of that mark with the
pertinent national authorities in Italy and elsewhere. Registration of an identical or confusingly
similar domain name despite such constructive knowledge is, without more,
evidence of bad faith registration and use of the domain name pursuant to
Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb.
Forum
We find, therefore, that Complainant has met
its burden under ¶ 4(a)(iii).
DECISION
Complainant having established all three elements required to be proven
under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <bravoclub.com> domain name be
forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 26, 2007
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