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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
NBA Properties, Inc. v. Holladio, Inc.
Case No. D2000-1626
1. The Parties
The Complainant is: NBA Properties, Inc., a State of New York corporation whose principal place of business is at 645 Fifth Avenue, New York, New York 10022, the United States of America.
The Respondent is: Holladio, Inc., located at 1030 E. El Camino Real, PMB 131, Sunnyvale, California 94087, the United States of America.
2. The Domain Name and Registrar
The domain name in dispute is <mynba.com>.
The registrar for the disputed domain name is Network Solutions, Inc. (NSI), 505 Huntmar Park Dr., Herndon, Virginia 20170.
3. Procedural History
This dispute is to be resolved in accordance with the Uniform Policy for Domain Name Dispute Resolution (the Policy) and Rules (the Rules) approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, and the World Intellectual Property Organization Arbitration and Mediation Center’s Supplemental Rules for Uniform Domain Name Dispute Resolution (the Center, the Supplemental Rules).
The Complaint was filed on November 27, 2000. On November 29, 2000, the Center requested that the registrar NSI check and report back on the registrant for the domain name <mynba.com>. On December 3, 2000, NSI reported to the Center that the registrant was the Respondent: Holladio, 1030 E. El Camino Real, PMB 131, Sunnyvale, California 94087, United States of America.
On December 5, 2000, the Center forwarded a copy of the Complaint to Respondent by registered mail and by e-mail and this Proceeding officially began. Respondent did not file a Response within the twenty (20) daytime period (Rule 5) and was declared in default by the Center on January 19, 2001.
The Administrative Panel submitted a Declaration of Impartiality and Independence on January 25, 2001 and the Center proceeded to appoint the Panel on January 26, 2001. The Panel finds the Center has adhered to the Policy and the Rules in administering this Case.
This Decision is due by February 7, 2001.
4. Factual Background
The National Basketball Association (NBA) operates a professional basketball league in the United States and Canada comprising twenty-nine (29) professional teams. The Complainant, NBA Properties, Inc., is the exclusive licensee of the "NBA" trade and service mark. The Respondent, Holladio, Inc., registered the disputed domain name <mynba.com> on September 20, 1999. The Panel gathers that at least one of the Respondent's activities is the registering and selling of domain names.
On April 13, 2000, and on September 25, 2000, the Complainant wrote to Respondent to allege trademark infringement and to demand that Respondent transfer the disputed domain name to Complainant. The only written response from Respondent is dated May 11, 2000, and there Respondent requested further proof that the disputed domain name infringes Complainant’s trademark rights. The Respondent has at times offered the domain name for sale to the public through the disputed domain name website.
5. The Parties’ Contentions
- As a result of extensive advertising, licensing, promotion and media coverage and the popularity of professional basketball, the NBA mark has come to be recognized and relied upon by the public as identifying the Complainant and its services.
- The NBA mark has achieved fame and secondary meaning.
- Without authorization from the Complainant, Respondent Holladio registered the domain name <mynba.com> with NSI on September 20, 1999.
- The domain name <mynba.com> used by Respondent is identical or confusingly similar to the famous NBA trademark owned by Complainant. The NBA mark was both famous and distinctive at the time that Respondent registered <mynba.com>.
- Respondent has no rights or legitimate interests in respect of <mynba.com>. The domain name <mynba.com> does not appear to bear any relationship to the business of Respondent. In fact, Respondent offered to sell the <mynba.com> domain name shortly after its purchase.
- After receipt of the April 13, 2000, letter from Complainant, Respondent changed the content of the <mynba.com> web site from a listing of domain names for sale to "My National Bible Access" in a transparent and belated attempt to create the illusion of a legitimate interest in the <mynba.com> domain name (Complaint, Exhibit G).
- Respondent's website at <mynba.com> continues to be only the list of available domain names offered for sale by the Respondent.
- Respondent has exhibited a pattern of cybersquatting behavior because Respondent registered a domain name derived from a famous trademark in order to prevent the owner of the trademark from having access to and reflecting the mark in a corresponding domain name.
6. Discussion and Findings
In order for Complainant to prevail and have the disputed domain name <mynba.com> transferred to it, Complainant must prove the following (the Policy, 4 (a)(i-iii):
- the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the domain name; and
- the domain name was registered and is being used in bad faith
Identical or Confusingly Similar
The Complainant has provided exemplary copies of a number of its registrations of the NBA trademark and service mark on the principal register of the United States Patent and Trademark Office. It will suffice to note the following: (a) "NBA" registration no. 1,505, 559 in international classes 6, 14, 16, 24, 25 and 28 dated September 27, 1988; and (b) service mark "NBA" registration no. 864, 034 in international class 42 for promotional services dated January 21, 1969. In registering the disputed domain name <mynba.com>, the Respondent only added the possessive pronoun "my". The Panel finds this is not enough to prevent the resulting domain name from being confusingly similar to Complainant's protected trademarks.
Legitimate Rights or Interests
As stated above in the "Parties' Contentions" section, the Complainant denies any relationship with the Respondent and alleges the Respondent registered the disputed domain name without any approval from the Complainant. The Respondent is in default in this proceeding and thus did not attempt to prove legitimate rights and interests in the disputed domain name in accordance with the Policy at 4(c).
Moreover, from what the Panel can glean from the record, the Respondent's sole interest in the disputed domain name and the numerous other domain names it has registered is to attempt to re-sell them. The Panel finds Respondent has no legitimate rights or interests in the disputed domain name.
Registered and Used in Bad Faith
The Respondent advertises domain names for sale at the disputed domain name web site and at other websites registered to Respondent. Among the domain names Respondent has registered are even variations on Bush and Gore. Thus, the Panel finds that Respondent is a cybersquatter, i.e., an entity that registers large numbers of domain names in hopes that it will reap significant profit when it resells them to parties with legitimate interests, in this case trademark interests, in the names. This violates the Policy at 4(b)(i).
The Panel is convinced the Respondent registered a domain name it knew was confusingly similar to Complainant's trademark. The Panel further finds the Respondent had no legitimate rights or interests in the disputed domain name and that the Respondent registered and was using the name in bad faith. Therefore, in accord with ICANN Policy 4(i) and Rule 15, the Panel orders the registrar NSI to transfer the domain name <mynba.com> from the Respondent, Holladio, Inc., to the Complainant, NBA Properties, Inc.
Dennis A. Foster
Dated: February 7, 2001