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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Rockstar Games v. Joseph Mahoney

Case No. D2007-0356

 

1. The Parties

Complainant is Rockstar Games of New York, New York, United States of America, a wholly owned subsidiary of Take Two Interactive, United States of America.

Respondent is Joseph Mahoney of Cherry Hill, New Jersey, United States of America.

2. The Domain Name and Registrar

The disputed domain name <manhunttwo.com> is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 9, 2007. On March 12, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On March 13, 2007, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 11, 2007.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on April 20, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

On May 11, 2007, the Panel issued an Order requesting information clarifying the ownership of the mark asserted in the Complaint and/or Complainant’s exclusive rights to use the mark.

Later on May 11, 2007, Complainant submitted its response to the Panel Order.

 

4. Factual Background

Complainant is a wholly-owned subsidiary of Take Two Interactive Software Inc. (“Take Two”), which is the owner of U.S. Trademark Registration No. 3064101 for the mark MANHUNT, registered February 28, 2006, for use in connection with printed matter, clothing, computer game programs, computer game software, and computer game cartridges. Complainant is the beneficiary of an exclusive license from Take Two for use of the mark MANHUNT in connection with the goods listed in the registration.

Complainant is a well-known and successful video game developer and publisher. One of the leading video game titles produced by Complainant is marketed under the mark MANHUNT. The original Manhunt® video game was hailed by The Chicago Tribune as “the most important game of the last five years.” Complaint has sold over a million copies of MANHUNT worldwide.

Complainant has used the MANHUNT trademark extensively around the world on television, on the Internet, in magazines and in various other media. Complainant has also spent many thousands of dollars annually on various types of advertising involving the MANHUNT mark.

On February 6, 2007, Complainant announced the production of a sequel to this bestselling game, to be titled Manhunt® 2. Complainant registered <manhunt2.com> with Network Solutions, Inc on January 22, 2007.

Without authorization from Complainant, Respondent registered the domain name <manhunttwo.com> on February 7, 2007 - only one day after the MANHUNT 2 game was announced.

Within hours of registering the <manhunttwo.com> domain name, Respondent widely offered the domain name for sale with a standardized email that read, in part,

I do not know if you are interested; but I own the domain www.ManhuntTwo.com. I am sure a great amount of traffic will be driven to that domain with the popularity of the Wii and the games previous success and notoriety.

http://www.eurogamer.net/article.php?article_id=71714

Would you like to secure that traffic is driven toward your initiatives with the purchase of the domain www.ManhuntTwo.com. Please contact me if you are interested.

Respondent sent this email to third-parties, such as the video game website “Destructoid.com”, and to Complainant. After Complainant replied requesting transfer of the domain name, Respondent claimed that he had been offered $75,000 by another company and suggested that Complainant use this number as a “starting point” for a counter-offer.

Subsequently, Respondent offered to settle the matter by asking for “promotional items” from Complainant consisting of “a line of Rockstar/Take Two games,” a Playstation 3, and a Nintendo Wii - a request that includes hard to find third-party products that would be worth at least $1,500. Complainant refused this demand and offered promotional items such as hats, t-shirts, and mugs. Respondent rejected these items but agreed to transfer the domain name to Complainant.

Despite agreeing to transfer the domain name to Complainant, Respondent has refused to sign and return a release agreement and has stopped responding to emails from Complainant. Respondent continues to hold the <manhunttwo.com> domain name and use it to redirect consumers to a website for his cell phone trade-in business.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that the domain name is identical to Complainant’s MANHUNT and Manhunt® 2 trademarks, that Respondent lacks any right or legitimate interests in the domain name, and that Respondent has registered and used the domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:

(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) Respondent has no rights or legitimate interests with respect to the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

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.”

A. Identical or Confusingly Similar

The disputed domain name incorporates Complainant’s MANHUNT trademark in its entirety, as well as the mark MANHUNT 2 announced by Complainant the day before Respondent registered the domain name <manhunttwo.com>. Merely adding the word “two,” which obviously reflects the number “2” in Complainant’s new product designation, does not avoid a finding of confusing similarity.

Thus, the Panel finds that the domain name is identical or confusingly similar to Complainant’s mark.

B. Rights or Legitimate Interests

Respondent has no rights or legitimate interests with respect to the domain name. There is no evidence that Respondent has prepared to use or used the domain name in connection with any bona fide offering of goods or services related to the name or has made any noncommercial or fair use of the domain name. Respondent’s website redirects Internet users to an unrelated site for a business he owns. Thus, there is no evidence that Respondent is using the domain name in a bona fide manner.

The Panel finds that Respondent lacks rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or

(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website or location of a product or service on Respondent’s website or location.

It should be noted that the circumstances of bad faith are not limited to the above.

In this case, Respondent’s conduct clearly demonstrates that Respondent registered the domain name with the intention of selling the domain name for an amount in excess of his out-of-pocket costs related to the domain name. Respondent’s offer to sell the domain name within hours of registration to various third-parties, his offer to sell the domain name to Complainant for a sum in excess of $75,000 and his offer to “settle” the matter for merchandise valued at over $1,500 - an amount far in excess of his initial registration fee - clearly demonstrates that Respondent registered the domain name <manhunttwo.com> with the intention to capitalize on the value and goodwill of the famous MANHUNT trademark.

Accordingly, the Panel finds that Respondent registered and used the domain name in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <manhunttwo.com> be transferred to the Complainant.

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Lynda J. Zadra-Symes
Sole Panelist

Dated: May 25, 2007