Academy, Ltd., d/b/a Academy Sports + Outdoors v. Inventory Management / Buydomains.com
Claim Number: FA1304001496272
Complainant is Academy, Ltd., d/b/a Academy Sports + Outdoors (“Complainant”), represented by Tyson D. Smith of Pirkey Barber PLLC, Texas, USA. Respondent is Inventory Management / Buydomains.com (“Respondent”), represented by Erik S. Zilinek of NameMedia, Inc., Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gamewinner.org>, 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.
Dr. Katalin Szamosi as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 24, 2013; the National Arbitration Forum received payment on April 24, 2013.
On April 24, 2013, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <gamewinner.org> 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 April 25, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 15, 2013 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@gamewinner.org. Also on April 25, 2013, 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.
A timely Response was received on May 15, 2013, but the Response has been deemed deficient for failure to comply with ICANN Rule 5 and/or the Supplemental Rules because the Response was received without the Annexes separated from the Response.
On May 30, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed dr. Katalin Szamosi 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Complainant argues that under Policy ¶ 4(a)(i) Respondent’s <gamewinner.org> domain name is identical or confusingly similar to Complainant’s GAME WINNER mark. In support of this Complainant asserts that
· Complainant is one of the largest sporting goods retailers in the United States, operating about 159 stores in thirteen states,
· the GAME WINNER mark has been use in connection with a wide variety of products and services, including hunting products and equipment and camping products sold through Complainant’s retail stores,
· it owns trademark registrations with the United States Patent and Trademark and Office (“USPTO”) for the GAME WINNER mark (e.g., Reg. No. 1,458,448 registered September 22, 1987).
2. Complainant argues that Respondent has no rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). In support of this Complainant asserts that
· Respondent is not commonly known by the <gamewinner.org> domain name,
· Respondent has attempted to sell the disputed domain name both generally and to Complainant specifically on multiple occasions,
· Respondent is using the disputed domain name for a pay-per-click parking page and is presumably paid a fee or commission when Internet users visit this website, click on the various links displayed on the page, and are diverted to third-party websites not owned or controlled by Complainant.
3. Complainant argues that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii). In support of this Complainant contends that
· Respondent’s attempts to sell the contested domain amount to bad faith,
· Respondent has engaged in a pattern of bad faith registration and use of others’ trademarks in domain names,
· Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the GAME WINNER mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website at <gamewinner.org> domain name.
B. Respondent
Respondent denies that it registered the <gamewinner.org> domain name in bad faith, but consents to transfer the domain to Complainant nonetheless.
Respondent urges that the Panel only transfer the disputed domain name, without issuing a decision on the merits of the case.
The Panel will not make any finding of fact for the reasons explained below.
Paragraph 15(a) of the Rules instructs the 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."
Preliminary Issue: Deficient Response
A timely Response was received on May 15, 2013, but it has been deemed deficient because it was received without the Annexes separated from the Response.
However the Panel chooses to accept and consider this Response despite its deficiency. See also Victoria’s Secret Stores Brand Mgmt., Inc. v. LaFond, FA 1362225 (Nat. Arb. Forum Jan. 7, 2011) (deciding that while the response was deficient, “the Panel has nonetheless decided to consider the deficient Response.”).
Preliminary Issue: Consent to Transfer
The Panel is of the view that since the Complainant requested the transfer of the disputed domain name and Respondent has not contested and agreed to transfer the domain name in question to Complainant, the Panel foregoes the traditional UDRP analysis and orders an immediate transfer of the <gamewinner.org> domain name.
See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”).
Given the common request of the parties, it is Ordered that the <gamewinner.org> domain name be TRANSFERRED from Respondent to Complainant.
dr. Katalin Szamosi Panelist
Dated: June 11, 2013
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