Hibbetsports.com

The timeline behind hibbetsports.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 Buyer Claim Number: FA0706001021112 PARTIES Complainant is Sports Holdings, Inc. (“Complainant”), represented by David Benck, 3763 Howard Hughes Parkway, Suite 170A, Las Vegas, NV 89169. Respondent is Domain Buyer (“Respondent”), Box C43891 Woods Centre, St. Johns 01001, AG. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <hibbetsports.com>, registered with eNom, Inc. PANEL 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. James A. Crary 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 July 25, 2007, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <hibbetsports.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 31, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 20, 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@hibbetsports.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 22, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary 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 <hibbetsports.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark. 2. Respondent does not have any rights or legitimate interests in the <hibbetsports.com> domain name. 3. Respondent registered and used the <hibbetsports.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Sports Holdings, Inc., is a Nevada corporation that, through its subsidiary, Hibbett Sporting Goods Inc., operates over six hundred sporting goods stores located in twenty-three states. Complainant has conducted business under the HIBBETT SPORTS mark and other related marks for over twenty years and currently operates a website at the <hibbett.com> domain name. Complainant holds a service mark registration with the United States Patent and Trademark Office (“USPTO”) for the HIBBETT SPORTS mark (Reg. No. 2,717,584 issued May 20, 2003). Respondent registered the <hibbetsports.com> domain name on February 10, 2007. Respondent’s disputed domain name resolves to a website displaying links to third-party websites offering sporting goods in direct competition with Complainant. 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 The Panel finds that Complainant has sufficiently established its rights in the HIBBETT SPORTS mark through its registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."). Complainant alleges that Respondent’s <hibbetsports.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark, and the Panel agrees. The disputed domain name merely omits one letter “t” from the word HIBBETT, an alteration which does not change the overall impression of the mark in the disputed domain name. Moreover, the addition of the generic top-level domain “.com” to the mark is irrelevant for the purposes of Policy ¶ 4(a)(i), as a top-level domain is a required element of all domain names. Thus, the Panel finds that the <hibbetsports.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark under Policy ¶ 4(a)(i). See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark); 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); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant next asserts that Respondent lacks rights and legitimate interests in the <hibbetsports.com> domain name pursuant to Policy ¶ 4(a)(ii). Complainant has the initial burden of proving this assertion, but the burden shifts to Respondent once Complainant has made a prima facie case. The Panel finds, in the instant case, that Complainant has established a prima facie case under the Policy. 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). Respondent’s failure to respond to the Complaint raises the presumption that Respondent lacks rights and legitimate interest in the <hibbetsports.com> domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). However, the Panel will now examine all evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c). Respondent’s WHOIS information does not indicate, and there is nothing further in the record to suggest, that Respondent is commonly known by the disputed domain name. Moreover, Respondent is not authorized or licensed by Complainant to use the HIBBETT SPORTS mark for any purpose. Thus, the Panel finds that Respondent lacks rights and legitimate interests in the <hibbetsports.com> domain name pursuant to Policy ¶ 4(c). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question). Respondent’s <hibbetsports.com> domain name resolves to a website featuring links to third-party websites in direct competition with Complainant, and the Panel presumes that Respondent earns click-through fees when Internet users click on these links. This does not constitute either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), which further indicates Respondent’s lack of rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See 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, websites 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); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services). The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Finally, Complainant alleges that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). Respondent is using the <hibbetsports.com> domain name to redirect Internet users to a website displaying links in direct competition with Complainant. The Panel finds that such use constitutes a disruption of Complainant’s business and indicates Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). Respondent presumably benefits commercially when Internet users, seeking Complainant’s business, click on the links displayed on the website that resolves from the <hibbetsports.com> domain name. Pursuant to Policy ¶ 4(b)(iv), the Panel further finds that Respondent registered and is using the disputed domain name in bad faith because Respondent is taking advantage of the likelihood of confusion between the <hibbetsports.com> domain name and Complainant’s HIBBETT SPORTS mark. See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied. 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 <hibbetsports.com> domain name be TRANSFERRED from Respondent to Complainant. James A. Crary, Panelist Dated: September 2, 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.