Hibbetsport.com

The timeline behind hibbetsport.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. I love china Claim Number: FA0707001048619 PARTIES Complainant is Sports Holdings, Inc. (“Complainant”), represented by David Benck, 3763 Howard Hughes Parkway, Suite 170A, Las Vegas, NV 89169. Respondent is I love china (“Respondent”), ChongQingChina, chongqingshi, chongqing 400010, CN. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <hibbetsport.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com. 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. Judge Ralph Yachnin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on July 30, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 2, 2007. On July 31, 2007, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <hibbetsport.com> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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 August 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 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@hibbetsport.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On September 5, 2007 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 <hibbetsport.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark. 2. Respondent does not have any rights or legitimate interests in the <hibbetsport.com> domain name. 3. Respondent registered and used the <hibbetsport.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 1994. Complainant also operates its official corporate website using the <hibbett.com> domain name. Complainant owns a trademark 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’s <hibbetsport.com> domain name was registered on November 27, 2005, and it resolves to a commercial search engine with direct links to competing sporting goods stores and other sport 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 USPTO. See U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”); see also 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.”). Respondent’s <hibbetsport.com> domain name omits the space between the words and the last letters “t” and “s” from the words HIBBETT and SPORTS of Complainant’s mark. The disputed domain name also includes a generic top-level domain. It is well established that omitted spaces and top level domain names are disregarded in a Policy ¶ 4(a)(i) analysis. See Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the complainant's CROATIA AIRLINES trademark); 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). Moreover, a generic typo, which includes the omission of letters from a word in a mark, leads to the finding that the disputed domain name is confusingly similar to Complainant’s mark. See 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 Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to the complainant’s HEWLETT-PACKARD mark). Consequently, the Panel finds that the <hibbetsport.com> domain name is confusingly similar to Complainant’s HIBBETT SPORTS mark pursuant to Policy ¶ 4(a)(i). 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 interests in the domain name at issue. See VeriSign Inc. Vene Sign, 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 Disputed Resolution Policy it is entitled to a transfer of the domain name.”). The Panel finds that Complainant has met this burden and 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 <hibbetsport.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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); 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.”). Nowhere in Respondent’s WHOIS information does it indicate that Respondent is commonly known by the <hibbetsport.com> domain name. There is also no 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 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 does not have a business or offer any services from the website that resolves from the disputed domain name. The <hibbetsport.com> domain name is being used as a commercial search engine and features links to competing sporting goods stores and third-parties which offer services and products that are similar to those offered under Complainant’s HIBBETT SPORTS mark. These links presumably provide Respondent compensation. Accordingly, the Panel finds that this is further evidence that Respondent has no rights or legitimate interests in the disputed domain name because it is not using the disputed domain name in connection with a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair way pursuant to 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 <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> 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, 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). The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith The disputed domain name resolves to a website that features links to competing sporting goods stores and third-parties which offer services and products that are similar to those offered under Complainant’s HIBBETT SPORTS mark. This is presumed to disrupt Complainant’s business. The Panel finds that Respondent registered and is using the <hibbetsport.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) (rejecting the Mission KwaSizabantu approach and 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 EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business); 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 <hibbetsport.com> domain name also displays a commercial search engine along with links to direct competitors of Complainant. It is presumed that such links commercially benefit Respondent through the accrual of click through fees. The Panel finds this to be additional evidence of Respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)). The Panel finds 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 <hibbetsport.com> domain name be TRANSFERRED from Respondent to Complainant. Hon. Ralph Yachnin, Panelist Justice, Supreme Court, NY (Ret.) Dated: September 17, 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.