SportSoft Golf, Inc., Wall Township, NJ, USA
COMPLAINANT,

vs.

Hale Irwin's Golfers' Passport, Kirkwood, MO, USA
RESPONDENT.

DECISION
Claim Number: FA0006000094956

REGISTRAR AND DISPUTED DOMAIN NAME(s) 

The domain name at issue is “GOLFERSPASSPORT.COM”, registered with Network Solutions, Inc. (“NSI”).

PANELIST(s)

Hon. James A. Carmody, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on June 5, 2000; The Forum received a hard copy of the Complaint on June 2, 2000. 

On June 6, 2000, NSI confirmed by e-mail to The Forum that the domain name “GOLFERSPASSPORT.COM” is registered with NSI and that the Respondent is the current registrant of the name.  NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 4.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On June 7, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 27, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by email.

On June 27, 2000, having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, The Forum transmitted to the parties a Notification of Respondent Default.

On June 30, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed the Hon. James A. Carmody as Panelist.

Having reviewed the communications records in the case file, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform 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 Forum’s Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The Complainant contends that the Respondent has registered a domain name that is identical to and confusingly similar to its trademark registered for and in use by the Complainant.  Further, the Complainant contends that the Respondent has no rights or legitimate interests to the domain name, and that the respondent has registered and is using the domain name in bad faith.                    

B.     Respondent

The Respondent submitted no response in this matter and, accordingly, all reasonable inferences of fact in the allegations of the Complaint will be deemed to be true.

FINDINGS

The U.S trademark, HALE IRWIN’S GOLFERS’ PASSPORT, was registered on March 24, 1987 (No. 1,434,276).  The U.S. trademark, GOLFERS’ PASSPORT, was registered on November 4, 1986 (No. 1,416,236).  The marks have also been registered in Canada.  The Complainant owns the trademarks through a series of assignments in connection with two asset purchase agreements.  The “Hale Irwin’s Golfers’ Passport” provides members with discounts and free rounds of golf at selected golf courses across the U.S.

The Respondent registered the domain name, “GOLFERSPASSPORT.COM” on December 14, 1995.  The web site offers for sale the “Hale Irwin’s Golfers’ Passport” and links users to new and old golf courses and resorts.  Neither these links nor the telephone number listed are operational.

The Complainant has sent the Respondent a written demand for transfer of the domain name but has received no response from the Respondent.

DISCUSSION

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy (“Policy”) directs that the complainant must prove each of the following three elements to support a claim 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.

The Complainant has offered exhibits in support of its claims, whereas the Respondent has submitted no response in the matter.  The Respondent’s failure to dispute the allegations of the Complainant permits the inference that the Complainant’s allegations are true.  Further, the Respondent’s failure to respond leads one to believe that the Respondent knows that its website is misleading and intentionally diverting business from the Complainant.  See Hewlett-Packard Company v. Full System, FA 94637 (Nat. Arb. Forum May 22, 2000).  Applying the Policy to the issue in this case furthers these inferences.

Identical and/or Confusingly Similar

The domain name in question is identical to and certainly confusingly similar to the Complainant’s registered trademarks.

The Respondent is creating confusion with the Complainant’s registered marks by using the said domain name to divert and usurp the Complainant’s users.  Selling an identical product and listing pertinent golf course information and Internet links, creates confusion as to the authentic location of the Complainant’s products and services, to which the Complainant has rights.  See Hewlett-Packard v. Full System, FA 94637 (Nat. Arb. Forum May 22, 2000) (finding that Respondent’s site <openmail.com> was confusingly similar to Complainant’s mark OPENMAIL).

Rights or Legitimate Interests

The Respondent asserts no rights or legitimate interests in the domain name in question.  The failure of Respondent to produce evidence sufficient to rebut Complainant's allegations entitles the Panel to conclude that Respondent has no such rights or legitimate interests in respect of the domain name at issue. See Parfums Christian Dior v. QTR Corp., No. D2000-0023 (WIPO Mar. 9, 2000).

While the domain name is being used to market goods and services, the Respondent’s offering is not bona fide, fair, or legitimate.  Policy ¶ 4(c)(i),(iii).  Rather, the Respondent is infringing upon the Complainant’s well-known, registered mark to make a profit. See Hewlett-Packard v. Full Systems, FA 94637 (Nat. Arb. Forum May 22, 2000).

Further, the domain name in question is not a term by which the Respondent is commonly known.  The Respondent registered the domain name in question after the Complainant’s mark was registered and established in the golfing community.  Policy ¶ 4(c)(ii).  See Hewlett-Packard v. Full Systems, FA 94637 (Nat. Arb. Forum May 22, 2000).

For these reasons, the Respondent has no rights or legitimate interests in the domain name GOLFERSPASSPORT.COM.

Registration and Use in Bad Faith

The Respondent has not responded to the Complaint and, therefore, cannot deny that the domain name was registered and is being used in bad faith, as alleged by Complainant.

The Respondent registered the domain name in bad faith.  The Respondent knew or should have known of the trademark registration and usage of the “Hale Irwin Golfers’ Passport” and the “Golfers’ Passport” marks prior to his registration of the domain name in question. See America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum March 15, 2000) (finding that the Respondent knew or should have known of the Complainant’s registered mark).

By infringing upon the Complainant’s marks, the Respondent is intentionally attempting to create confusion as to the location of the Complainant’s authentic website and the affiliation of the products advertised on the Respondent’s website.  Policy ¶ 4(b)(iv).  See America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum March 15, 2000).

For the previously stated reasons, the panel finds that the domain name was registered and is being used in bad faith.

DECISION

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted. 

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, “GOLFERSPASSPORT.COM” be transferred from the Respondent to the Complainant.

James A. Carmody, Judge (Ret.)
Dated: July 11, 2000

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