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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The Professional Golfers Association of America v. Mr. Michael Suggs

Case No. DTV2007-0012

 

1. The Parties

Complainant is The Professional Golfers Association of America, of United States of America, represented by Arnold & Porter of Washington D.C., United States of America.

Respondent is Mr. Michael Suggs, of Smyrna, Georgia, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <pga.tv> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 10, 2007, naming James Barclay as Respondent. An Amended Complaint was filed with the Center on August 13, 2007, naming James Barclay, Michael Suggs, and Tim Suggs as Respondents. On August 15, 2007, the Center transmitted by email to eNom, Inc. a request for registrar verification that the domain name registration in issue is owned by James Barclay. On August 15, 2007, eNom transmitted by email to the Center its response indicating that the registration in issue is owned by Michael Suggs and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Amended 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 Respondent Michael Suggs of the Complaint, and the proceedings commenced on August 24, 2007. The Center set September 13, 2007, as the last day for the submission of a Response. No response was filed, and a Notification of Respondent Default was issued by the Center on September 17, 2007.

The Center appointed Jeffrey M. Samuels as the Panel in this matter on September 24, 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.

 

4. Factual Background

Complainant, The Professional Golfers Association of America (PGA) owns a number of United States trademark registrations that include the term “PGA”, as used on or in connection with golf tournaments, golf travel packages, golf instruction, golf equipment, goods, wearing apparel, and other products and services.1 PGA also owns the domain names <pga.net>, <pga.com>, and <pga.org>, which direct users to the official website of the PGA.

When PGA first discovered the existence of the disputed domain name, it was registered to a Mr. Tim Suggs. Via its counsel, PGA contacted Mr. Suggs by letter dated February 8, 2007, requesting transfer of the domain name. Complaint, Annex F. The home page of the website located at the disputed domain name directs users to additional web pages containing golf-related links2 and also incorporating the PGA and PGA TOUR marks.

On June 14, 2007, it came to PGA’s attention that the domain name <pga.tv> was no longer registered to Tim Suggs. Rather, the WhoIs database showed ownership of the domain name in Mr. James Barclay. PGA’s counsel, thereafter, sent a letter to Mr. Barclay demanding transfer of the domain name. Complaint, Annex G. On June 19, 2007, Barclay’s business partner, Mr. Evan Tidwell, responded that he would not transfer the domain name and threatened “bad publicity” should PGA file a complaint.

As noted above, PGA first filed its Complaint on August 10, 2007, naming Barclay as respondent. On August 12, PGA’s authorized representative received an email from Barclay indicating that he was no longer the owner of the domain name. It appears that on August 11, 2007, the domain name <pga.tv> was transferred to a Mr. Michael Suggs, who has the same postal address as Tim Suggs.

 

5. Parties’ Contentions

A. Complainant

PGA contends that the disputed domain name is identical to the PGA mark. It notes that Respondent has incorporated the PGA mark exactly into the disputed domain name and argues that the addition of a generic top-level domain name is irrelevant in determining whether the challenged domain name is identical or confusingly similar to the PGA mark. According to Complainant, having arrived at the “www.pga.tv” website, Internet users would be frustrated and confused at not having reached the official PGA website.

Complainant further asserts that Respondent has no legitimate rights or interests in the disputed domain name. PGA contends that Respondent has not been licensed or authorized by PGA to use the PGA mark. Upon information and belief, Complainant further argues that Respondent has never been known by the disputed domain name and that Respondent’s use of the domain name in connection with an infringing website for purposes of financial gain through the posting of sponsored links and ads cannot qualify as a bona fide, non-commercial or fair use of the domain name.

PGA maintains that the disputed domain name was registered in bad faith. This is demonstrated, PGA argues, in that Respondent was undoubtedly aware of Complainant’s rights in the PGA mark, given that PGA is one of the most recognizable golf-related entities in the United States and worldwide. Moreover, PGA adds, its rights in the PGA mark would have been obvious through basic Internet searches or even a cursory search of the United States Patent and Trademark Office’s records. According to Complainant, “[b]ased on the use of the exact PGA® Mark for the Infringing Domain Name, and their lack of affiliation to the Infringing Website, the Registrants appear to have registered the Infringing Domain Name solely to profit from misdirected Internet traffic intended for the official website of the PGA of America.”

With respect to the issue of bad faith use, PGA declares that “it is inconceivable that the Registrants’ use of the Complainant’s exact mark can be construed as anything but bad faith. Given the Infringing Domain Name’s use of the exact PGA® Mark owned by the PGA of America, as well as the use of a domain name nearly identical to the domain names registered and used by the PGA of American for its official website, it could not be more evident that the Registrants’ intentionally registered, and/or acquired by transfer from each other, a confusingly similar domain name to divert Internet traffic to their websites, thus capitalizing on the goodwill of the PGA of America.”

Complainant further notes that the disputed domain name is hosted by TrafficZ.com, which is dedicated to generating revenue from parked domains while providing accurate metrics of each domain, and contends that the current Respondent is using Complainant’s exact mark in order to divert Internet users to a webpage that subjects its visitors to advertisements.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel determines that the disputed domain name, <pga.tv> is, for purposes of this decision, identical to Complainant’s PGA mark. The domain name incorporates the mark in its entirety and the addition of the top-level domain name “.tv” is irrelevant for purposes of comparing the domain name with the mark for purposes of this element of the Policy.

The Panel further concludes that Complainant, through its use of, and registrations covering, the PGA mark, has rights in such mark.

B. Rights or Legitimate Interests

The Panel finds that Complainant has sustained its burden of establishing that Respondent has no rights or legitimate interests in the domain name. Given the virtual identity of the domain name and the PGA mark and the use of the domain name ostensibly to obtain revenue by posting what appear to be sponsored links and ads, it may not be held that the domain name is being used in connection with a bona fide offering of goods and/or services. Further, there is no evidence that Respondent Suggs is commonly known by the disputed domain name or that the domain name is being used in a non-commercial or fair manner.

C. Registered and Used in Bad Faith

Finally, the Panel determines that the domain name was registered and is being used in bad faith. The evidence establishes that, by using the domain name <pga.tv>, Respondent intentionally attempted to attract, for commercial gain, Internet users to his site by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of such site, within the meaning of paragraph 4(b)(iv) of the Policy. Given the longstanding3 and prominent use of the PGA mark by Complainant, Internet users would reasonably believe that a site found at a domain name that incorporates in full the term “PGA” would be sponsored by or affiliated with Complainant.

 

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 <pga.tv> be transferred to the Complainant.


Jeffrey M. Samuels
Sole Panelist

Dated: October 8, 2007


1 These include Registration No. 578,653 for the collective service mark PGA; No. 2,810,446 for a stylized representation of PGA.COM; No. 2,531,732 for the mark PGA MAGAZINE; and No. 2,577,719 for the mark PGA MAGAZINE and Design. Complaint, Annex D.

2 The Panel has reviewed the current version of the “www.pga.tv” website and notes that it includes what appear to be sponsored ads as well as links relating to financial matters.

3 The evidence of record indicates that the mark PGA was first used as a collective service mark in 1916. See Complaint, Annex D.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/dtv2007-0012.html

 

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