Academysportsandoutdors.com, Academysportsoutdoor.com, Acedamysportsandoutdoors.com

The timeline behind academysportsandoutdors.com

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

How each disputed name was decided in this proceeding.

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

NATIONAL ARBITRATION FORUM DECISION Academy, Ltd., d/b/a Academy Sports and Outdoors v. Transure Enterprise Ltd c/o Host Master Claim Number: FA0909001283916 PARTIES Complainant is Academy, Ltd., d/b/a Academy Sports and Outdoors (“Complainant”), represented by Wendy C. Larson, Texas, USA. Respondent is Transure Enterprise Ltd c/o Host Master (“Respondent”), Virgin Islands. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com>, registered with Above, 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. Judge Ralph Yachnin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on September 11, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 14, 2009. On September 15, 2009, Above, Inc. confirmed by e-mail to the National Arbitration Forum that the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names are registered with Above, Inc. and that Respondent is the current registrant of the names. Above, Inc. has verified that Respondent is bound by the Above, 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 September 17, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 7, 2009 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@academysportsandoutdors.com, postmaster@academysportsoutdoor.com, and postmaster@acedamysportsandoutdoors.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On October 13, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachin 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 names be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names are confusingly similar to Complainant’s ACADEMY SPORTS + OUTDOORS mark. 2. Respondent does not have any rights or legitimate interests in the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names. 3. Respondent registered and used the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Academy Ltd. d/b/a Academy Sports & Outdoors, is a sporting goods retailer. Complainant operates 110 stores in at least eleven states. Complainant’s retail stores sell a wide range of sporting goods including apparel. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its ACADEMY SPORTS + OUTDOORS mark (Reg. No. 3,338,039 issued November 20, 2007). Respondent registered the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names no earlier than April 27, 2007. The disputed domain names resolve to parked websites featuring commercial search engines and hyperlinks further containing Complainant’s mark but resolving to websites unrelated to 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 Complainant has registered the ACADEMY SPORTS + OUTDOORS mark with the USPTO (Reg. No. 3,338,039 issued November 20, 2007). Previous panels have found that a complainant has established rights in a mark through a trademark registration with the USPTO. See Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum Dec. 21, 2006) (finding that the Complainant’s federal trademark registration established its rights in the mark under Policy ¶ 4(a)(i)). Past panels have also found that a complainant’s rights in a mark begin on the trademark filing date. See Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date). Complaint filed its trademark registration with the USPTO on November 6, 2006 which occurred before Respondent first began registering the disputed domain names on April 27, 2007. Therefore, the Panel finds Complainant has established rights in Complainant’s ACADEMY SPORTS + OUTDOORS mark pursuant to Policy ¶ 4(a)(i). Complainant alleges Respondent’s <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names are confusingly similar to Complainant’s ACADEMY SPORTS + OUTDOORS mark. Each of the disputed domain names subtracts the symbol “+” and adds the generic top-level domain (“gTLD”) “.com.” The <academysportsandoutdors.com> and <acedamysportsandoutdoors.com> domain names further add the generic term “and,” and contain common misspellings of Complainant’s mark. The Panel finds common misspellings, the removal of a symbol, the addition of a generic term, and the addition of a gTLD fail to adequately distinguish the disputed domain names from Complainant’s mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Adamovske Strojirny v. Tatu Rautiainen, D2000-1394 (WIPO Dec. 20, 2000) (finding confusing similarity between the <adast.com> domain name and the complainant’s three different marks, consisting of a combination of a symbol with the words “ADAST”, “ADAST dominant” and “ADAST maxima”); see also Victoria’s Secret v. Plum Promotions, FA 96503 (Nat. Arb. Forum Feb. 27, 2001) (“The mere addition of the generic term “tv” does not reduce the likelihood of confusion under Policy 4(a)(i).”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel finds Respondent’s disputed domain names are confusingly similar to Complainant’s ACADEMY SPORTS + OUTDOORS mark under Policy ¶ 4(a)(i). The Panel finds Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has alleged that Respondent does not have any rights or legitimate interests in the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); 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 uses the disputed domain names to resolve to parked websites featuring commercial search engines and hyperlinks further containing Complainant’s mark but resolving to websites unrelated to Complainant. Complainant claims Respondent receives click-through fees from the search engines and hyperlinks. The Panel finds Respondent’s use of the disputed domain names is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names pursuant to Policy ¶ 4(c)(iii). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names). Complainant asserts that Respondent is not authorized to use the ACADEMY SPORTS + OUTDOORS mark. Respondent failed to offer evidence showing Respondent is commonly known by the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names. The WHOIS information on the record lists Respondent as “Transure Enterprise Ltd c/o Host Master” and there is no evidence on the record showing Respondent is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See 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 Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Complainant alleges Respondent’s use of the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names is a part of a pattern of bad faith use and registration. Respondent has been a respondent in numerous UDRP proceedings in which disputed domain names were transferred from Respondent to the complainants in those cases. See, e.g., LEGO Juris A/S v. Above.com Domain Privacy, Host Master / Transure Enterprise Ltd, Host Master, D2009-0907 (WIPO Aug. 24, 2008); see also Intesa Sanpaolo S.p.A v. Above.com Domain Privacy / Transure Enterprise Ltd, D2009-0838 (WIPO Aug. 28, 2009). The Panel finds this constitutes a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Hachette Filipacchi Presse v. Fortune Int'l Dev., FA 96685 (Nat. Arb. Forum Apr. 6, 2001) (finding that where the respondent has registered over 50 domain names that correspond to different well-known trademarks, evidence of a pattern exists). The Panel infers Respondent profits from the <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names through click-through fees resulting from the commercial search engine and unrelated hyperlinks. Because Respondent’s domain names are confusingly similar to Complainant’s ACADEMY SPORTS + OUTDOORS mark, Internet users accessing Respondent’s domain names may become confused as to Complainant’s affiliation with the resulting website and disputed domain names. The Panel finds that such use constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)). The Panel finds 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 <academysportsandoutdors.com>, <academysportsoutdoor.com>, and <acedamysportsandoutdoors.com> domain names be TRANSFERRED from Respondent to Complainant. Hon. Ralph Yachnin, Panelist Justice, Supreme Court, NY (Ret.) Dated: October 27, 2009 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.