WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Matrix Group Limited, Inc. v. LaPorte Holdings, Inc.
Case No. D2005-0059
1. The Parties
The Complainant is Matrix Group Limited, Inc., Florida, United States of America, represented by Hinckley, Allen & Snyder, LLP, United States of America.
The Respondent is LaPorte Holdings, Inc., Los Angeles, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <wrestlerone.com> is registered with NameKing.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2005. On January 19, 2005, the Center transmitted by email to NameKing.com a request for registrar verification in connection with the domain name at issue. On January 19, 2005, NameKing.com 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, billing, and technical contacts. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 30, 2005. The Center verified that the Complaint, together with the amendment to the Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or the “UDRP”), 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 February 1, 2005. In accordance with the Rules, paragraph 5(a), the due date for the Response was February 21, 2005. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on February 24, 2005.
The Center appointed D. Brian King as the Sole Panelist in this matter on March 24, 2005. The Panel finds that it was properly constituted. The Sole Panelist 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
Because of the Respondent’s default, the following facts are drawn from the Complaint and the evidence submitted in support. However, the Panel must emphasize that the Complainant bears the burden of proof notwithstanding the Respondent’s default, and factual assertions in the Complaint will not be accepted if they are not sufficiently supported by the evidence and inferences that may properly be drawn from the record. See Brooke Bollea v. Robert McGowan, WIPO Case No. D2004-0383 (June 29, 2004).
The Complainant has sold wrestling gear by mail order catalog since 1985 under the name “WRESTLING ONE.” More recently, it has sold its products through an on-line store at “www.wrestlingone.com”, a domain name that is registered to the Complainant. The United States Patent and Trademark Office has registered WRESTLING ONE as a service mark, with the Complainant as owner, for “retail store and on-line services featuring wrestling equipment and related accessories”. This registration occured more than 18 months before the Respondent registered the disputed domain name.
The disputed domain name, <wrestlerone.com>, resolves to a web page containing a variety of links to other sites, most or all of which appear to be commercial. Because of their placement at the top of the page, their being set off by boxes and other graphical elements, and their larger type sizes, links to commercial sites dealing in wrestling equipment are the most prominent on the Respondent’s page.
5. Parties’ Contentions
The Complainant contends that the disputed domain name, <wrestlerone.com>, is confusingly similar to its WRESTLING ONE mark and that the Respondent’s registration of <wrestlerone.com> constitutes “typosquatting”.
The Complainant further asserts that the Respondent has no legitimate interest in <wrestlerone.com>. According to the Complainant, there is no evidence that the Respondent has ever been known by the name “wrestlerone” or that it has made any legitimate use of that name in the past. The Complainant also argues that it is not a legitimate or fair use of the disputed domain name for Respondent to direct Internet users to a website that in turn links to the websites of competing sellers of wrestling equipment.
Finally, the Complainant cites four grounds for believing that the Respondent registered and is using the disputed domain name in bad faith. First, the Respondent is diverting Internet users to the Complainant’s competitors, presumably for a click-through fee paid to the Respondent. Second, “typosquatting,” which the Complainant defines as registering a domain name that differs by only one or two characters from a mark in which another person has rights, is inherently in bad faith. Third, because of the Complainant’s registration of its WRESTLING ONE mark and its use of that mark in the wrestling equipment market for 20 years, the Respondent had actual and constructive knowledge of the Complainant’s mark such that the registration of an infringing domain name must be in bad faith. Finally, the Respondent is allegedly a serial typosquatter, having been found in violation of the UDRP by several panels.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Because the Respondent defaulted, the Panel has carefully considered whether the Respondent was afforded adequate notice of this proceeding. The Registrar confirmed that the Respondent had registered the disputed domain name and provided a street address for the Respondent. The Center sent a copy of the Complaint by courier to that address. Another copy was sent by courier to the Registrar. The courier’s database confirms that both copies were delivered as addressed. The Center also sent electronic copies of the Complaint, without attachments, to the email address recorded for the Respondent in the Registrar’s database and to firstname.lastname@example.org. Under the circumstances, the Panel concludes that the Center has fulfilled its duty under paragraph 2(a) of the Rules “to employ reasonably available means calculated to achieve actual notice to Respondent”. See VoiceStream Wireless Corp. v. Polanski, WIPO Case No. D2001-1413 (March 25, 2002).
A. Identical or Confusingly Similar
The Panel has little difficulty in concluding that the disputed domain name, <wrestlerone.com>, is confusingly similar to the Complainant’s WRESTLING ONE mark. A reasonable Internet user would likely believe that <wrestlerone.com> was sponsored by or associated with the Complainant.
B. Rights or Legitimate Interests
Although the burden of proving this element lies with the Complainant, UDRP panels have recognized that it is unfair and impractical to demand stringent proof of a negative; that the Respondent lacks any rights or legitimate interests in the disputed domain name; particularly when the relevant evidence is likely to be in the possession of the Respondent. Accordingly, a prima facie showing by the Complainant is sufficient, unless the Respondent comes forward with evidence affirmatively showing a right or legitimate interest. See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455 (August 21, 2003). The Panel finds that the Complainant has made the required showing here.
There is no evidence in the record suggesting that the Respondent has ever made a legitimate use of the disputed domain name. If such evidence exists, the Respondent had a fair opportunity to present it. On the other hand, the Respondent’s prior behavior strongly suggests that it is in the business of abusing domain names in which it has no rights or legitimate interests. The Complainant cites a number of UDRP decisions reflecting a similar pattern: the Respondent registers a domain name that is very similar to the mark of a famous enterprise, uses the domain name to divert Internet users to the sites of enterprises that compete with the holder of the mark, and then defaults when a complaint is brought under the Policy. See, e.g., MB Financial Bank, N.A. v. LaPorte Holdings, Inc., NAF Case No. 362110 (December 8, 2004) (<mbfinacial.com>); Société des Hôtels Méridien v. LaPorte Holdings, Inc., WIPO Case No. D2004-0849 (December 16, 2004) (<lemeriden.com>). It would be a remarkable coincidence if the Respondent also happened to have a legitimate trade in wrestling equipment alongside its typosquatting activities; the more reasonable inference is that this is just one more instance of the Respondent’s registering a domain name in which it lacks any rights or legitimate interests within the meaning of the Policy. In any event, the record is, as stated, devoid of any evidence supporting an inference of rights or legitimate interests on the Respondents part, the Respondent having been given, but not having used, a fair opportunity to proffer any such evident that might exist.
C. Registered and Used in Bad Faith
For similar reasons, the Panel concludes that the Respondent registered and has used the disputed domain name in bad faith. This appears to be a textbook case under paragraph 4(b)(iv) of the Policy, which provides that it shall be evidence of registration and bad faith if:
“by using the domain name, you [the Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”
The record leaves little room for doubt that the Respondent’s conduct falls within this provision. At least two elements of the paragraph require inferences from the record, but they are obvious inferences that other panels have made in similar cases involving this Respondent, and this Panel has no hesitation in joining its predecessors in that respect. First, the Panel finds that the Respondent is acting intentionally in attracting Internet users to its website by creating and exploiting confusion through the use of the disputed domain name. Second, the Panel infers that the Respondent is acting for commercial gain; although there is no direct evidence to this effect, it seems highly probable (and consistent with prevailing commercial practice) that the Respondent receives some kind of payment from the commercial enterprises whose links appear on the Respondent’s “wrestlerone” page. See Dollar Rent A. Car, Inc. v. Albert Jackson, NAF Case No. 187421 (September 24, 2003).
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 <wrestlerone.com> be transferred to the Complainant.
D. Brian King
Dated: April 7, 2005