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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

National Football League v. Vernard Bonner

Case No. D2008-0605

 

1. The Parties

The Complainant is National Football League, New York, New York, United States of America.

The Respondent is Vernard Bonner, Tempe, Arizona, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <officialsuperbowlparties.com> is registered with GoDaddy.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 17, 2008. On April 18, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On April 18, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 April 24, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 14, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 15, 2008.

The Center appointed M. Scott Donahey as the sole panelist in this matter on May 23, 2008. 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 is the owner of several trademarks registered with the United States Patent & Trademark Office (“USPTO”) for the mark SUPER BOWL, the earliest of which issued on May 12, 1968, showing a first use in commerce of December 6, 1966. Complaint, Annex E. The trademark SUPER BOWL is also registered in over 50 foreign jurisdictions.

The SUPER BOWL game played on February 3, 2008, was the most watched sporting event on television on record and the second-most watched television program in history. Complaint, Annex D. The SUPER BOWL game is annually among the highest rated television programs in the United States of America. Complaint, Annex C.

In conjunction with the SUPER BOWL game, Complainant hosts a number of “Officially Sanctioned Events,” including the “Media Party,” the “Pepsi Musica Super Bowl Fiesta,” and the “944 Magazine Party.” Complaint, Annex I.

Respondent registered the domain name at issue on October 10, 2007. Complaint, Annex A. Respondent used the domain name at issue to resolve to a web site that included a banner reading “Official Super Bowl Parties.com” in large print and featured the officially sanctioned SUPER BOWL XLII host committee logo in at least two places. Respondent’s web site was not authorized by Complainant, and Complainant wrote Respondent a cease and desist letter on January 22, 2008. Complaint, Annex L.

In response, the parties reached a compromise. Respondent agreed to alter its web site, and Complainant agreed to take no action prior to the February 3, 2008 Super Bowl, and Respondent further agreed to transfer the domain name to Complainant following the SUPER BOWL. Complaint, Annex M. However, Respondent subsequently refused to transfer the domain name as agreed.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that the domain name at issue is confusingly similar to Complainant’s marks, that Respondent has no rights or legitimate interests in respect of the domain name at issue, and that the domain name at issue was registered and is being used in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall 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.”

Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:

- that the domain name at issue registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and,

- that Respondent has no rights or legitimate interests in respect of the domain name at issue; and,

- that the domain name at issue has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The domain name at issue consists of Complainant’s registered mark to which the common terms “official” and “parties” are appended and the gTLD suffix “.com”. It has long been held that the addition of generic or descriptive terms to a mark will not alter the fact that the domain name at issue is confusingly similar to the mark in question. F. Hoffman-La Roche AG v. IT Developers s.c. Tomasz Kraus, Lukasz Haluch, WIPO Case No. D2006-1547 (<prescriptionsvalium.com>); Nokia Corporation v. Nokiagirls.com aka IBCC, WIPO Case No. D2000-0102 (<nokiagirls.com>); Eauto L.L.C. v. Net Me Up, WIPO Case No. D2000-0104 (<eautomotive.com>). The Panel finds that the domain name at issue is confusingly similar to Complainant’s registered mark.

B. Rights or Legitimate Interests

The consensus view of WIPO panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:

While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.

WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Section 2.1.

In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the domain name at issue, nor has Complainant granted Respondent a license, permission, or authorization to use its registered SUPER BOWL trademark. Respondent has failed to respond to Complainant’s assertions. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name at issue.

C. Registered and Used in Bad Faith

Respondent registered the domain name at issue at a time when Complainant’s mark had attained nationwide and world wide recognition, and Respondent could not have been unaware of Complainant’s mark. Not only did Respondent use the domain name at issue to resolve to a web site on which Complainant’s famous mark was prominently featured, but the web site also contained uses of other intellectual property of Complainant and advertised events that directly competed with Complainant’s staged events. Accordingly the Panel finds that Respondent used the domain name at issue in direct violation of paragraph 4(b)(iv) of the Policy. The Panel finds that the domain name at issue was registered and is being used 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, <officialsuperbowlparties.com> be transferred to the Complainant.


M. Scott Donahey
Sole Panelist

Date: May 29, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0605.html

 

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