Hibbetssports.com

The timeline behind hibbetssports.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Sports Holdings, Inc. v. Domain Administration Limited c/o David Halstead Claim Number: FA0706001021078 PARTIES Complainant is Sports Holdings, Inc. (“Complainant”), represented by David Benck, 3763 Howard Hughes Parkway, Suite 170A, Las Vegas, NV 89169. Respondent is Domain Administration Limited c/o David Halstead (“Respondent”), PO Box 37410, Parnell Auckland, Auckland , VIC, II 1033, NZ. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <hibbetssports.com>, registered with Enom, 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. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on June 26, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 6, 2007. On June 27, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <hibbetssports.com> 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-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On July 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 30, 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@hibbetssports.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On August 7, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <hibbetssports.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark. 2. Respondent does not have any rights or legitimate interests in the <hibbetssports.com> domain name. 3. Respondent registered and used the <hibbetssports.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant has been continuously using the HIBBETT SPORTS trademark in connection with the operation of sporting goods stores since 1980. Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the HIBBETT SPORTS mark (Reg. No. 2,717,584 issued May 20, 2003, filed January 24, 2002). Respondent registered the <hibbetssports.com> domain name on August 7, 2002. Respondent is using the disputed domain name as a commercial search engine with direct links to Complainant’s competitors as well as links to other sports equipment websites. DISCUSSION 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint 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.”). 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. Identical and/or Confusingly Similar Complainant has sufficiently established its rights in the HIBBETT SPORTS mark pursuant to Policy ¶ 4(a)(i) through registration of the mark with the United States Patent and Trademark Office, dating back to the filing date of the application for registration. See Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”); see also J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 U.S.P.Q. 435 (C.C.P.A. 1965) (registration on the Principal Register is prima facie proof of continual use of the mark, dating back to the filing date of the application for registration). Respondent’s <hibbetssports.com> domain name is a misspelling of Complaint’s HIBBETT SPORTS mark that replaces the second “t” with an “s.” The disputed domain name and Complainant’s mark differ further in two ways: (1) the omission of the space between “HIBBETT” and “SPORTS,” and (2) the addition of a generic top-level domain. It is well established that omitted spaces and top level domains are disregarded in a Policy ¶ 4(a)(i) analysis. As such, the Panel finds that the <hibbetssports.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark pursuant to Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Albertson’s, Inc. v. Bennett, FA 117013 (Nat. Arb. Forum Sept. 5, 2002) (“[T]he absence of a space and the hyphen between the words of the mark are not changes that are capable of overcoming a Policy ¶ 4(a)(i) analysis.”); 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 concludes that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Under Policy ¶ 4(a)(ii), Complainant must initially make out a prima facie case that Respondent has no rights or legitimate interest in the domain name at issue. See VeriSign Inc. v. VeneSign, C.A., D2000-0303 (WIPO June 28, 2000) (“Respondent's default, however, does not lead to an automatic ruling for Complainant. Complainant still must establish a prima facie case showing that under the Uniform Domain Name Dispute Resolution Policy it is entitled to a transfer of the domain name.”) The Panel finds that Complainant has met this burden; accordingly, the burden is shifted to Respondent to demonstrate that it does have rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent.”). Respondent has failed to submit a response to the Complaint. The Panel thus presumes that Respondent has no rights or legitimate interests in the <hibbetssports.com> domain name, but will still consider all available evidence with respect to the factors listed in Policy ¶ 4(c) before making this determination. See America Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). Respondent’s WHOIS information does not indicate that Respondent is commonly known by the <hibbetssports.com> domain name, nor is there any other information in the record to indicate that Respondent is or ever has been known by the disputed domain name. Further, Respondent has not sought, nor has Complainant granted, a license or permission to Respondent to use Complainant’s mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). Respondent is not using the <hibbetssports.com> domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair way pursuant to Policy ¶ 4(c)(iii). The <hibbetssports.com> domain name is being used as a commercial search engine and features sponsored links to third parties, some of which are in direct competition with Complainant’s mark. These hyper links presumably provide Respondent compensation. The Panel finds that this is further evidence that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the domain names to redirect Internet users to a website featuring advertisements and links to complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith The disputed domain names resolve to a web page that features hyperlinks to third parties which offer goods and services that are in direct competition with those offered under Complainant’s mark. This is presumed to disrupt Complainant’s business. The Panel finds that Respondent registered and used the <hibbetssports.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See Tribeca Film Ctr., Inc. v. Brusasco-Mackenzie, D2000-1772 (WIPO Apr. 10, 2001) (holding that “a respondent can ‘disrupt the business of a competitor’ only if it offers goods or services that can compete with or rival the goods or services offered by the trademark owner”); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites). Respondent’s <hibbetssports.com> domain name resolves to a website featuring a commercial search engine and sponsored links to direct competitors of Complainant. It is presumed that such links commercially benefit the Respondent through the accrual of click-through-fees. Consequently, the Panel finds this to be further evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Nat. Arb. Forum Oct. 6, 2003) (“Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii). 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 <hibbetssports.com> domain name be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: August 20, 2007 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.