WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cobra Golf Incorporated v. Stephen Francis
Case No. D2012-0664
1. The Parties
The Complainant is Cobra Golf Incorporated, Carlsbad, California, United States of America, represented by Brown Rudnick Berlack Israels LLP, United States of America.
The Respondent is Stephen Francis, Princeton, New Jersey, United States of America.
2. The Domain Name and Registrar
The disputed domain name <cobraball.com> is registered with Register.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2012. On March 29, 2012, the Center transmitted by email to Register.com a request for registrar verification in connection with the disputed domain name. On March 29, 2012, Register.com 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. The Center sent an email communication to the Complainant on March 30, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 13, 2012.
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 April 17, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 7, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 9, 2012.
The Center appointed William F “Bill” Hamilton as the sole panelist in this matter on May 23, 2012. 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
The Complainant is an internationally recognized manufacturer of premium golf related equipment and accessories. The Complainant owns numerous United States registrations for the COBRA mark dating back to as early as 1958.
The disputed domain name was registered on April 4, 2011.
5. Parties’ Contentions
The Complainant asserts that the disputed domain name is confusingly similar to its well known COBRA mark because the disputed domain name wholly incorporates the COBRA mark as a prefix before the generic word ”ball". The Complainant asserts that it has never authorized or licensed the Respondent to use the mark COBRA nor to use the disputed domain name. The Complainant asserts the disputed domain name was registered and is being used in bad faith as the disputed domain name resolves to a website featuring golf equipment and related products manufactured by the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order for the Panel to decide to grant the remedy of transfer of a domain name to a complainant under the Policy it is necessary that the complainant prove, as required by paragraph 4(a) of the Policy, that:
(i) the contested domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The appendage of a generic term (such as “ball” in this case”) to a registered mark does little to dispel confusion and, in fact, may heighten the likelihood of confusion. Société AIR FRANCE v. Angelika Freitag, Angelika Freitag Company, WIPO Case No. D2008-1219; Shaw Industries Group, Inc. and Columbia Insurance Company v. DomainsByProxy, Inc. and Patti Casey, WIPO Case No. D2007-0555; Nikon Inc. and Nikon Corporation v. Photocom Korea, WIPO Case No. D2000-1338; Kabushiki Kaisha Toshiba d/b/a Toshiba Corporation v. Distribution Purchasing & Logistics Corp., WIPO Case No. D2000-0464; Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627. The Panel finds that the disputed domain name <cobraball.com> is confusingly similar to Complainant's registered COBRA mark.
B. Rights or Legitimate Interests
The Complaint asserts that there has never been a business relationship between the Complainant and the Respondent and that the Complainant has never authorized or licensed the Respondent to use the Complainant's mark. The disputed domain name is being used for obvious commercial purposes and thus its use is not protected by any claim of noncommercial use. Lastly, it does not appear (and the Respondent has not asserted) any genuine business activity by the Respondent using the mark COBRA other than the business generated through the disputed domain name. The Complainant has presented a prima facie case demonstrating the Respondent's lack of rights or legitimate interests in the disputed domain name. The Respondent has not come forward to rebut the Complainant's showing. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. LEGO Juris A/S v. PrivacyProtect.org/ThaiSerVerOnLinE, Mr.Sagsan Phurahong, WIPO Case No. D2010-0711; Audi AG v. Dr. Alireza Fahimipour, WIPO Case No. DIR2006-0003.
C. Registered and Used in Bad Faith
At the time of registration of the disputed domain name, the Respondent was on constructive, if not actual, notice of the Complainant's COBRA mark. The Complainant's COBRA mark was registered with the U.S. Patent and Trademark Office and had been widely used by the Complainant for decades. A simple Internet search by the Respondent at the time of registration of the disputed domain name would have disclosed the Complainant's use of the COBRA mark in connection with golfing equipment and accessories. It is simply not plausible in this Panel’s view that the Respondent was unaware of the Complainant's COBRA mark at the time of registration of the disputed domain name. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. Moreover, the disputed domain name resolves to a website offering COBRA branded products and other golf related equipment for commercial sale. It is inconceivable that the disputed domain name was chosen by happenstance to serve as a domain name for a website that features competitive golfing products that includes references to the Complainant's products. While COBRA does have a dictionary referring to a highly venomous snake, the Respondent has not come forth with any explanation as to how the disputed domain name was chosen. As discussed in Section B there is no evidence that the Respondent has been known as purveyor of snake related products or services. Moreover there is no apparent plausible connection between venomous cobra snakes and "balls" that might explain some bona fide business and the registration of the disputed domain name. In view of the above, the Panel finds that the disputed domain name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <cobraball.com> be transferred to the Complainant.
William F. Hamilton
Dated: May 30, 2012