Vivendi Universal Games and Davidson & Associates, Inc. v. Blizzard
Ent
Claim Number: FA0302000146620
Complainant is
Vivendi Universal Games and Davidson & Associates, Inc., Los
Angeles, CA (“Complainant”) represented by David J. Steele, of
Christie, Parker & Hale LLP. Respondent is Blizzard Ent, Irvine,
CA (“Respondent”).
REGISTRAR AND DISPUTED
DOMAIN NAME
The domain name at issue
is <blizzard-north.com> registered with Dotster.
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.
Honorable Paul A. Dorf
(Ret.) as Panelist.
Complainant submitted a
Complaint to the National Arbitration Forum (the "Forum")
electronically on February 24, 2003; the Forum received a hard copy of the
Complaint on February 26, 2003.
On February 25, 2003, Dotster
confirmed by e-mail to the Forum that the domain name <blizzard-north.com>
is registered with Dotster and that Respondent is the current registrant of the
name. Dotster has verified that Respondent is bound by the Dotster 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 February 26, 2003, a
Notification of Complaint and Commencement of Administrative Proceeding (the
"Commencement Notification"), setting a deadline of March 18, 2003 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@blizzard-north.com by e-mail.
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 March 24, 2003,
pursuant to Complainant's request to have the dispute decided by a
single-member Panel, the Forum appointed Honorable Paul A. Dorf (Ret.) as
Panelist.
Having reviewed the
communications records, the Administrative Panel (the "Panel") finds
that the 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." 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 Respondent.
Complainant requests
that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <blizzard-north.com>
domain name is confusingly similar to Complainant’s BLIZZARD mark.
2. Respondent does not have
any rights or legitimate interests in the <blizzard-north.com>
domain name.
3. Respondent registered
and used the <blizzard-north.com> domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant holds
trademark registrations with the United States Patent and Trademark Office
(“USPTO”) for the BLIZZARD mark (Reg. No. 2,490,187 registered on September 18,
2001) and the BLIZZARD ENTERTAINMENT mark (Reg. No. 2,492,072 registered on
September 25, 2001) related to computer game software and instruction manuals
sold as a unit. Complainant operates numerous websites, including
<blizzard.com> and <battle.net>. Complainant markets goods and
services on its websites internationally, generating substantial sales
annually.
Respondent registered
the <blizzard-north.com> domain name on January 13, 2003. Respondent is using the disputed domain name to
post an identical copy of Complainant’s <battle.net> website to intercept
Complainant’s customers’ account names and passwords.
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."
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.
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.
Complainant has
established its rights in the BLIZZARD mark through registration with the USPTO
with a first use in commerce stated as 1994.
Respondent’s <blizzard-north.com>
domain name is confusingly similar to Complainant’s mark because the disputed
domain name incorporates Complainant’s mark and simply tacks on a hyphen and
the descriptive term “north” to the end of the registered mark. Neither the
addition of a hyphen nor a descriptive term clear up the confusing similarity
between Respondent’s domain name and Complainant’s mark pursuant to Policy ¶
4(a)(i). See Teleplace, Inc. v. De Oliveira, FA 95835 (Nat. Arb. Forum
Dec. 4, 2000) (finding that the domain names <teleplace.com>,
<tele-place.com>, and <theteleplace.com> are confusingly similar to
Complainant’s TELEPLACE trademark); see also Parfums Christian Dior v. 1
Netpower, Inc., D2000-0023 (WIPO Mar. 3, 2000) (finding that four domain
names that added the descriptive words "fashion" or
"cosmetics" after the trademark were confusingly similar to the
trademark); see also Pfizer, Inc. v. Papol Suger, D2002-0187 (WIPO Apr.
24, 2002) (finding that because the subject domain name incorporates the VIAGRA
mark in its entirety, and deviates only by the addition of the word “bomb,” the
domain name is rendered confusingly similar to Complainant’s mark).
The Panel finds that
Complainant has established Policy ¶ 4(a)(i).
Respondent
has failed to come forward with a Response with regard to this proceeding.
Therefore, the Panel is permitted to accept all reasonable inferences and
allegations in the Complaint as true. 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 Complainant 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”).
Moreover,
the Panel is permitted to presume that Respondent has no rights or legitimate
interests in the disputed domain name because of Respondent’s refusal to
respond to the Complaint. See Am. Online, Inc. v. AOL Int'l, D2000-0654
(WIPO Aug. 21, 2000) (finding no rights or legitimate interests where
Respondent fails to respond); see also Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response,
Respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name).
Respondent
is using the <blizzard-north.com> domain name to redirect Internet
users to an identical website in order to intercept Complainant’s customers’
account names and passwords. The Panel infers that Respondent is profiting from
the fraudulent collection of account names and passwords, which is not a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum
Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to
confuse and divert Internet traffic is not a legitimate use of the domain
name); see also AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000)
(finding that use of the domain name to direct users to other, unconnected
websites does not constitute a legitimate interest in the domain name).
There is no
evidence in the record and Respondent has failed to invoke any circumstances
that demonstrate that Respondent is commonly known by BLIZZARD NORTH or <blizzard-north.com>.
Therefore, Respondent has failed to establish that it has rights or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See RMO,
Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001)
(Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been
commonly known by the domain name prior to registration of the domain name to
prevail"); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no
rights or legitimate interests where (1) Respondent is not a licensee of
Complainant; (2) Complainant’s prior rights in the domain name precede
Respondent’s registration; (3) Respondent is not commonly known by the domain
name in question).
The Panel
finds that Complainant has established Policy ¶ 4(a)(ii).
Respondent
is using the <blizzard-north.com> domain name to divert Internet
users to an identical website in order to intercept Complainant’s customers’
account names and passwords. Respondent’s fraudulent representations
demonstrate that Respondent intentionally attempted to attract, for commercial
gain, Internet users to the disputed domain name by creating a likelihood of
confusion with Complainant’s mark as to the source, sponsorship, affiliation,
or endorsement of Respondent’s website, which is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Kahn,
FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits
from its diversionary use of Complainant's mark when the domain name resolves
to commercial websites and Respondent fails to contest the Complaint, it may be
concluded that Respondent is using the domain name in bad faith pursuant to
Policy ¶ 4(b)(iv)); see also State Farm Mut. Auto. Ins. Co. v. Northway,
FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the Respondent
registered the domain name <statefarmnews.com> in bad faith because
Respondent intended to use Complainant’s marks to attract the public to the website
without permission from Complainant).
Furthermore,
by using an identical website as Complainant’s at the disputed domain name
Respondent demonstrates its actual or constructive knowledge of Complainant’s
rights in the mark, which is evidence of bad faith pursuant to Policy ¶
4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb.
Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or
constructive knowledge of a commonly known mark at the time of registration).
The Panel
finds that Complainant has established Policy ¶ 4(a)(iii).
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly,
it is Ordered that the <blizzard-north.com> domain name be TRANSFERRED
from Respondent to Complainant.
Honorable
Paul A. Dorf (Ret.) Panelist
Dated: April 8, 2003
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