WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Sportsmanís Guide, Inc. v. Asia Ventures, Inc.
Case No. D2002-1116
1. The Parties
The Complainant is The Sportsmanís Guide, Inc., 411 Farwell Avenue, South St. Paul, Minnesota 55075-0239, United States of America, of United States of America, represented by Killworth, Gottman, Hagan & Schaeff, L.L.P of United States of America.
The Respondent is Asia Ventures, Inc., GPO 11136, Central, Hong Kong, SAR of China.
2. The Domain Names and Registrar
The disputed domain name sportmensguide.com is registered with The Registy at Info Avenue dba IA Registry.
3. Procedural History
The Complaint was received by WIPO by email on December 4, 2002, and in hard copy form on December 6, 2002. WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Registry has confirmed that the domain name <sportmensguide.com> ("the domain name") was registered through The Registry and that Asia Ventures, Inc is the current registrant. The Registry has further confirmed that the Policy is applicable to the domain name.
The Panel is of the view that all the domain names the subject of the Complaint ought sensibly to be dealt with together. However, it cannot be. The agreement between CentralNic and the Respondent, which was in force at the date of the Complaint, does not incorporate the Policy. The agreement currently in force refers to the Policy, but insofar as the Policy is concerned only permits CentralNic to cancel or suspend the registration of a domain name. It does not seem to permit CentralNic to transfer a domain name. The Complaint only seeks transfer of the Ď.uk.comí domain names. More fundamentally, in the context of the Policy, the new agreement only permits action adverse to the Respondent in circumstances where " Ö following [the Policy] the name has been judged to infringe the trademark or other intellectual property of the complainant." That is not a finding, which a Panel is required to make under the Policy.Reluctantly, the Panel concludes that it does not have jurisdiction to hear this Complaint insofar as it concerns the Ď.uk.comí domain names.On December 13, 2002, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending his Response to the Complainant and to WIPO was January 2, 2003.
No Response having been received by WIPO by January 2, 2003, WIPO issued a Notification of Respondent Default on January 7, 2003.
The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel, as a consequence of which the date scheduled for the issuance of the Panelís Decision is January 30, 2003.
4. Factual Background
The Complainant is The Sportsmanís Guide, Inc of Minnesota, USA. The Complainant has traded under the name, The Sportsmanís Guide, since at least 1977, as a mail order company and since 1998, in the field of online retail services.
The Complainant is the proprietor of several US trademark registrations comprising and including the name THE SPORTSMANíS GUIDE, the earliest of which dates back to 1987.
The Complainant operates a website at "www.sportsmansguide.com" through which it has offered its online services since 1998.
The Respondent is Asia Ventures, Inc of Hong Kong, SAR of China. It registered the domain name on or about January 16, 2002.
The Respondent operates a website connected to the domain name which links to various other sites.
The Complainant has produced evidence to suggest (and in not responding the Respondent has not denied) that the Respondent has signed up to a scheme described at "www.kanoodle.com" whereby the Respondent derives revenue from visitors to its site moving on to other sites to which the Respondentís site is linked.
5. Partiesí Contentions
The Complainant contends that it has trade mark rights in and about the name THE SPORTSMANíS GUIDE and points to its trade mark registrations, its use of the name over the last 20 years or more and the use of its website connected to the domain name <sportsmansguide.com> over the last five years.
The Complainant contends that the domain name is confusingly similar to its trademark, THE SPORTSMANíS GUIDE, and its domain name <sportsmansguide.com>.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the domain name. It points to the fact that the Respondentís name is Asia Ventures, Inc, not the domain name or any name similar to the domain name. It contends that the Respondentís Ďserviceí provided by reference to the domain name (i.e. via the website connected to the domain name) is not a bona fide service, it being merely a link to other sites, the Respondent deriving revenue from visitors to its site using those links. The Complainant contends that the service is not a bona fide service because to the Respondentís knowledge, visitors to the Respondentís site are likely to be people intending to visit the Complaintís site, but mis-typing the web address or having an imperfect recollection of the Complainantís web address.
In other words the Respondent deliberately selected the domain name because it was confusingly similar to the Complainantís trademark and is relying on the inevitable resultant confusion among Internet users for commercial gain.
The Complainant contends that this constitutes bad faith registration and use of the domain name within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) of the Policy.
The Respondent did not respond.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that
(i) The domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interest in respect of the domain name; and
(iii) The domain name has been registered in bad faith and is being used in bad faith.
Where a Respondent who has been properly notified of the Complaint fails to respond, the Panel is entitled to draw such inferences as it considers appropriate (Rule 14(b)).
Identical or confusingly similar
The domain name, <sportmensguide.com> differs from the Complainantís trade mark, THE SPORTSMANíS GUIDE, in that the definite article is missing, it features an "E" where the trade mark features an "A" and, necessarily, it omits the apostrophe. It differs from the Complainantís domain name in only the second of those respects.
The Panel finds that the differences are trivial and that confusion is likely.
Accordingly, the Panel finds that the domain name is confusingly similar to a trademark in which the Complainant has rights.
Rights or Legitimate Interests
The Respondent is named Asia Ventures, Inc. It is not named Sportsmens Guide or any similar such name. The Respondent provides a service by reference to the domain name but is it a bona fide service?
The Panel accepts the Complainantís uncontraverted evidence to the effect that the Respondentís website connected to the domain name links in some way to a search engine, Rocket Search, which is also owned and operated by the Respondent. Further, as the Complainant claims, the evidence strongly suggests that the Respondent has entered into an arrangement with <kanoodle.com> along the lines of one of those set out on the "kanoodle.com" website whereby the Respondent receives a sum of money whenever a visitor to one of the Respondentís site (including that connected to the domain name) clicks through to a site of a "kanoodle.com" customer and does business with that customer.
In the absence of any Response from the Respondent, the Panel believes that the Respondent deliberately selected the domain name with a view to attracting visitors to its site, anticipating that it would attract visitors intending to reach the Complainantís site, but misspelling the name or inaccurately recollecting the name. In light of the <kanoodle.com> connection, the Panel believes it more than likely that the Respondentís motive was commercial gain.
That being the case, the Respondent cannot sensibly be said to have any rights or legitimate interests in respect of the domain name.
By the same reasoning, the Panel is in no doubt that the Respondent registered the domain name and is using it in bad faith within the meaning of paragraphs 4(b)(iv) and 4(a)(iii) of the Policy.
In light of the foregoing findings, namely that the domain name is confusingly similar to a trade mark in which the Complainant has rights and that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name was registered and is being used in bad faith, the Complaint succeeds and the Panel directs that the domain name <sportmensguide.com> be transferred to the Complainant.
Dated: January 20, 2003