Peter Jerie v. Agelos
Destounis
Claim Number: FA0611000830931
PARTIES
Complainant is Peter Jerie (“Complainant”), represented by Sean
F. Heneghan, 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is Agelos Destounis (“Respondent”), Orfanidou 49,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <livescore2.com>, registered with Melbourne
It, Ltd. d/b/a Internet
Names Worldwide.
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.
David A. Einhorn appointed as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on November 1, 2006; the
National Arbitration Forum received a hard copy of the Complaint on October 31, 2006.
On November 1, 2006, Melbourne It, Ltd. d/b/a Internet Names Worldwide
confirmed by e-mail to the National Arbitration Forum that the <livescore2.com>
domain name is registered with Melbourne It,
Ltd. d/b/a Internet Names Worldwide and that the Respondent is the
current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names Worldwide
has verified that Respondent is bound by the Melbourne
It, Ltd. d/b/a Internet Names Worldwide 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 November 10, 2006, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of November 30, 2006 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@livescore2.com by
e-mail.
A timely Response was received and determined to be complete on November 30, 2006. However, no hard copy version (or attachment)
was submitted in compliance with ICANN Rule No. 5(a).
An additional submission was timely received from Complainant on
December 6, 2006.
On December 11, 2006, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the National Arbitration Forum
appointed David A. Einhorn as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant makes the following assertions:
1. Respondents’
<livescore2.com> domain name is confusing similar to Complainant’s livescore mark.
2. Respondents’
does not have any rights of legitimate interests in the <livescore2.com> domain name.
3. Respondents’
registered and used the <livescore2.com> domain name in bad faith.
B. Respondent
Respondent
argues that he does not earn money from this website and that he has attempted
to transfer to Complainant this domain in exchange for Complainant’s
reimbursement for his fees for website registration, hosting services,
programmers, web designers and advertising copy which he has spent to date.
C. Additional Submissions
In
its Additional Submission, Complainant notes that Respondent did not submit a
hard copy of its Response, in violation of ICANN Rule 5(a), and did not submit
Appendix A referred in its Response, making it impossible to evaluate
Respondents’ claims. Further, Complainant
notes that Respondent has violated 5(b)(iii) of the Rules by not including the
required “complete and accurate” certification statement in conjunction with
Respondents’ signature.
FINDINGS
Respondent’s response deserves little (if any) weight, since Respondent
has failed to certify his statements as true, and since Respondent has failed
to attached referenced Appendix A to his response, making it impossible to
evaluate Respondent’s claims.
Nevertheless, this Panel finds Respondent’s arguments, even if accepted
as true, to be unconvincing. In light of
its review of Complainant’s and Respondent’s submissions, this Panel finds the
following:
(1) The domain name registered by Respondent is
identical or confusingly similar to a mark in which Complainant has rights.
(2) The Respondent has no rights or legitimate
interests with respect to the domain name; and
(3) The domain name has been registered and is
being used 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 the Complainant must prove
each of the three elements addressed separately below:
Complainant has submitted evidence of a valid trademark registration for the LIVESCORE mark with the United States Patent and Trademark Office (Reg. No. 2,514,933 issued December 4, 2001). As a result, Complainant has sufficiently demonstrated its rights in the mark pursuant to Policy ¶ 4(a)(i) that predate Respondent’s registration of the disputed domain name on November 20, 2004. See ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant demonstrated its rights in the SPORTSCENTER mark through its valid trademark registrations with the USPTO and similar offices around the world); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <livescore2.com> domain name is confusingly similar to Complainant’s LIVESCORE mark because it incorporates the mark in its entirety and merely adds the number “2.” Respondent’s addition of the number “2” does not adequately differentiate the <livescore2.com> domain name from Complainant’s LIVESCORE mark, which leads to a finding of confusing similarity under Policy ¶ 4(a)(i). See Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the minor addition of numbers to the complainant’s mark was “insufficient to negate the confusingly similar aspects of [the disputed] domain name pursuant to Policy ¶ 4(a)(i).”); see also Am. Online Inc. v. Chinese ICQ Network, D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in the domain name <4icq.com> does nothing to deflect the impact on the viewer of the mark ICQ and is therefore confusingly similar); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
There is no evidence in the record
to suggest that Respondent is commonly known by the <livescore2.com> domain name. The Panel therefore finds that Respondent has
not established rights or legitimate interests in the <livescore2.com> domain name pursuant
to Policy ¶ 4(c)(ii) because it has failed to come forward with evidence to
suggest that it is commonly known by the disputed domain name. See The Braun Corp. v. Loney, FA
699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not
commonly known by the disputed domain names where the WHOIS information, as
well as all other information in the record, gave no indication that the
respondent was commonly known by the disputed domain names, and the complainant
had not authorized the respondent to register a domain name containing its
registered mark); see also Ian Schrager Hotels,
L.L.C. v. Taylor, FA 173369 (Nat. Arb.
Forum Sept. 25, 2003) (finding that without demonstrable evidence to support
the assertion that a respondent is commonly known by a domain name, the
assertion must be rejected).
Furthermore, the evidence presented
shows that Respondent is using the <livescore2.com> domain name to
redirect Internet users seeking Complainant’s real-time sporting event scores
to its own website that offers similar services. The use of a confusingly similar domain name
that fully incorporates a third party’s mark to offer related services neither
amounts to 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
Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003)
(finding that the respondent was not using the domain name within the
parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain
name to take advantage of the complainant's mark by diverting Internet users to
a competing commercial site); see also Ultimate Elecs., Inc. v. Nichols,
FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use
of the domain name (and Complainant’s mark) to sell products in competition
with Complainant demonstrates neither a bona fide offering of goods or services
nor a legitimate noncommercial or fair use of the name”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Moreover, Complainant has presented unrefuted evidence that Respondent has
registered and is using the <livescore2.com> domain name to
provide real-time sporting event scores in direct competition with
Complainant. The Respondent is diverting
Internet users seeking Complainant’s services to its own competing website,
which claim supports a finding of bad faith registration and use under Policy ¶
¶ 4(b)(iii) and 4(b)(iv). See Dell
Inc. v. Innervision Web Solutions, FA 445601 (Nat. Arb. Forum May
23, 2005) (finding evidence of bad faith where the respondent was using the
<dellcomputerssuck.com> domain name to divert Internet users to
respondent’s website offering competing computer products and services); see
also Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (find that
the respondent’s use of the <arizonashuttle.net> domain name, which
contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic
to Respondent’s website offering competing travel services violated Policy
¶ 4(b)(iv)); Puckett v. Miller,
D2000-0297 (WIPO June 12, 2000)(finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <livescore2.com> domain name be TRANSFERRED
from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: December 26, 2006
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