The Complainants are NBA Properties Inc., NBA Media Ventures LLC and The Denver Nuggets Limited Partnership Pepsi Center of the United States of America, represented by Hogan & Hartson, LLP, United States.
The Respondent is Domains Plus of Panama.
The disputed domain name <denvernuggets.com> is registered with Internet.bs Corp.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 20, 2009. On April 21, 2009, the Center transmitted by email to Internet.bs Corp. a request for registrar verification in connection with the disputed domain name. On April 23, 2009, Internet.bs Corp. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on May 1, 2009. The Center verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “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 May 7, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 27, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 28, 2009.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on June 8, 2009. 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.
The Complainant NBA Properties, Inc. (“NBAP”) is a corporation duly organized and existing under the laws of the state of New York and is the executive licensing and merchandising agent for the National Basketball Association (“NBA”) and member teams, including the Denver Nuggets. The Complainant NBAP owns all trademarks relating to the NBA and is, pursuant to agreements with member teams, the owner or exclusive licensee of other trademarks relating to the NBA member teams, including the DENVER NUGGETS mark.
The Complainant NBA Media Ventures, LLC (“NBAMV”) is a company duly organized and existing under the laws of the State of Delaware. NBAMV is an affiliated company of the Complainant NBAP and the owner of record of the domain name registrations of the NBA and its member teams, including the Denver Nuggets, including, but not limited to, <nuggets.com>.
The Complainant Denver Nuggets Limited Partnership (“DNLP”) owns the Denver Colorado based Denver Nuggets basketball team, a member team of the NBA. DNLP owns the incontestable trademark DENVER NUGGETS which was issued on June 20, 1978 as U.S. Trademark Registration No. 1,094,036. In addition, Complainant DNLP owns federal U.S. Trademark Registrations for DENVER NUGGETS and DENVER NUGGETS (& Design).
The Respondent Domain Plus of Panama City, Panama is the registrant of the subject domain name <denvernuggets.com>. The Respondent likely is, or licenses the subject domain name to, the entity NBATix, an online marketplace for the resale of tickets to various NBA events. The domain name currently redirects to a page on the website “www.nbatix.com” exclusively for the resale of tickets for Denver Nuggets team games.
(a) Identical or Confusingly Similar
The Complainants contend that the domain name <denvernuggets.com> is confusingly similar to the Complainants' trademark DENVER NUGGETS. The mark is the subject of federal U.S. Trademark Registration No. 1,094,036 which issued in June 20, 1978, and attained incontestable status on February 10, 1999.
The Complainants contend that the domain name <denvernuggets.com> is essentially identical to the trademark DENVER NUGGETS except for the deletion of the dividing space character and addition of the “.com.” Accordingly, the Complainants submit that the domain name <denvernuggets.com> is nearly identical or confusingly similar to the Complainants' trademark.
(b) Rights or Legitimate Interests
The Complainants contend that the Respondent cannot demonstrate any legitimate interest in the disputed domain name. The Complainants submit that they have not licensed or otherwise permitted the Respondent to register a domain name incorporating its trademark. The Complainants submit that the Respondent has not used or made demonstrable preparation to use the domain name in connection with a bona fide offering of goods or services.
The Complainants also submit that the Respondent is not commonly known by the domain name and merely uses the domain name to funnel business into an unrelated ticket resale website. The Complainants further contend that the Respondent does not use the domain name for legitimate non-commercial or fair use. Rather, the domain name directs the public to a ticket sale website where the Respondent receives commissions on tickets sold. The Complainants contend that there is no need for the Respondent to use the primary domain name corresponding to the mark and that this in turn causes confusion about the affiliations of the site. The Complainants submit that this makes the use unfair.
(c) Registered and Used in Bad Faith
The Complainants submit that the Respondent has registered the domain name in bad faith. The Complainants submit that the Respondent registered the domain name in order to prevent the Complainants from reflecting the mark in their primary domain name corresponding to the mark. The Complainants further contend that the current use of the domain name leads to confusion about non-existent affiliation between the ticket site NBATix and the Denver Nuggets team. The Complainants submit that this confusion is intentional as evidenced by the fact the Complainants' rights in the mark were known, or should have been known through due diligence, prior to the Respondent's registration of the domain name.
The Respondent did not reply to the Complainants' contentions.
According to paragraph 4(a) of the Policy, in order to succeed, the Complainants must establish each of the following elements:
(i) The domain name is identical or confusingly similar to the trademark or service mark in which the Complainants have rights;
(ii) The Respondent has no rights or legitimate interest in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
The Panel finds that the Complainants have established rights in the trademark DENVER NUGGETS by virtue of its U.S. Trademark Registration No. 1,094,036.
The Panel also finds that the domain name <denvernuggets.com> is confusingly similar to the Complainants' trademark DENVER NUGGETS. The domain name replicates the Complainants' trademark in its entirety, and the addition of the “.com” ending is not sufficient to distinguish the name from the Complainants' trademark.
Therefore, the Panel finds that the Complainants have satisfied the first requirement of paragraph 4(a) of the Policy.
In the absence of any response put forward by the Respondent, and given the well-known status of Complainants' trademark, the Panel is prepared to find that the Respondent was aware of the Complainants' rights, and intended to trade on those rights by redirecting users to the NBATix website, where tickets for Denver Nuggets games could be purchased.
The Panel finds no evidence that the Respondent was ever known by the name Denver Nuggets. The Panel also accepts the Complainants' assertion that it never authorized or licensed the Respondent to use or register a domain name that included the Complainants' trademark DENVER NUGGETS.
Accordingly, the Panel finds that the Complainants have satisfied the second requirement of paragraph 4(a) of the Policy.
The Panel finds that the use of this confusing domain name in connection with the linked ticket resale site NBATix wrongly suggests an affiliation between the Respondent's business and that of the Complainants'. It is clear that the Respondent knew of the Complainants' rights and sought to profit from the perceived association with the mark.
Accordingly, the Panel finds that the Complainants have satisfied the third requirement of paragraph 4(a) of the Policy.
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, <denvernuggets.com> be transferred to the Complainant NBA Media Ventures LLC.
Christopher J. Pibus
Date: June 22, 2009