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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Churchill Downs Incorporated v. WHOISPROTECTOR, INC./ John Doe/ Jalapeno Ventures Ltd.

Case No. D2012-0769

1. The Parties

Complainant is Churchill Downs Incorporated of Louisville, Kentucky, United States of America, represented by Bingham Greenebaum Doll LLP, United States.

Respondents are WHOISPROTECTOR, INC. Chicago, Illinois, United States and John Doe and Jalapeno Ventures Ltd. of Charlestown, Saint Kitts and Nevis.

2. The Domain Name and Registrar

The disputed domain name <kentuckyderby.info> is registered with DomainPeople, Inc (hereinafter the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 13, 2012. On April 13, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 13, 2012, the Registrar 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 Complainant on April 17, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint.

Complainant filed an amended Complaint on April 17, 2012.

The Center verified that the Complaint together with 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 Respondents of the Complaint, and the proceedings commenced on April 18, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 8, 2012. Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on May 9, 2012.

The Center appointed Ross Carson as the sole panelist in this matter on May 15, 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.

On May 16, 2012 a person called Christopher Bradford of Victoria, British Columbia, Canada forwarded an e-mail to the Center, with a copy to the Panel stating that he created the website “www.kentuckyderby.info” many years ago to provide information on about the Kentucky Derby which is why he selected a “.info” site.

Mr. Bradford further states: “At no time have I ever presented KentuckyDerby.info as an official Kentucky Derby website. I have simply been providing information to people who have been interested in the Kentucky Derby, sending them to the official KentuckyDerby.com site if I have been unable to help them myself for tickets and things of that nature. I have spent countless hours replying to emails from fans of the Kentucky Derby, supplying them information that can be difficult to find at times as derby fans love the Kentucky Derby 365 days a year. Unfortunately www.kentuckyderby.com doesn’t offer much news and information about the Kentucky Derby on their site, that was the reason why I started KentuckyDerby.info many years ago to fill the void for fans.”

Mr. Bradford further submitted: ”I ask that the board please reconsider taking my domain away from me and hope that they can see this is an informational site. I am not a www.kentuckyderby.org site and never have I tried to be or represent myself as www.kentuckyderby.com, I simply provide information for the public. What started as posting schedules and information that nobody could ever find has become my passion and my hobby. If Churchill Downs wants a disclaimer that says “Not an official Kentucky Derby site” I could do that.”

The Center replied to Mr. Bradford’s e-mail informing him that the due date for submissions of a Response has now passed and the Rules make no express provision for the filing of materials by either party at this stage of the proceedings except as may be specifically requested by the Panel. The Center advised him that it will alert the Panel of receipt of his communication. It will then be at the sole discretion of the Panel as to whether it wishes to consider such communication, and what further procedural steps may be required if any.

4. Factual Background

The Kentucky Derby is one of the most famous thoroughbred horse races in the world. The Kentucky Derby race has been run in Louisville, Kentucky, United States for 138 consecutive years. Complainant is the owner of numerous registered trademarks for KENTUCKY DERBY. Complainant is the registered owner of United States Trademark Registration No. 997,385 for the trademark KENTUCKY DERBY registered on November 5, 1974. The trademark is registered in relation to: “services rendered in connection with presenting horse races and providing information relating thereto through various forms of media.” First Use: 1875. First Use in Commerce: May 1925. People from around the world attend the annual running of the Kentucky Derby. Heavy media coverage relating to the horses owners and jockeys goes on for months prior to each annual Kentucky Derby.

5. Parties’ Contentions

A. Complainant

A.1. Identical or Confusingly Similar

Complainant states that it is the owner of numerous registered trademarks in the United States for the trademark KENTUCKY DERBY registered in relation to goods and services associated with organizing and presenting a thoroughbred horse race, Complainant submits that the disputed domain name <kentuckyderby.info> is identical to Complainant’s registered trademarks for KENTUCKY DERBY.

A.2. No Rights or Legitimate Interests in respect of the Disputed Domain Name

Complainant states that at no time has it authorized the registration of the disputed domain name <kentuckyderby.info> or any other domain name identical to or confusingly similar to Complainant’s famous trademark KENTUCKY DERBY.

Complainant states that in addition to its numerous United States trademark registrations for KENTUCKY DERBY it is also the owner of copyright registrations that are being used without authorization on Respondents’ website, including a “KENTUCKY DERBY 138” logo, which is actually the trademark-protected design for the 135th Kentucky Derby, but which the Respondents have altered to reference the current year’s Derby, namely “138”. In addition, Complainant has United States trademark registrations for the horseshoe and rose design, as shown in the trademark, and Respondents are making unauthorized use of that design mark as well. A screenshot of Respondents’ website showing the unauthorized use of the Complainant’s trademarks is attached as an annex to the Complaint.

Complainant submits upon information and belief that Respondents have registered the disputed domain name in bad faith in order to divert consumers away from Complainant’s legitimate website. Visitors to Respondents’ website are likely to believe, based on both Respondent’s unauthorized use of the disputed domain name and Respondents’ unauthorized use of Complainant’s copyright and trademark protected designs on the website itself, that they have reached a legitimate website owned by the Complainant.

A.3. Registration in Bad Faith

Complainant states that the Kentucky Derby was a famous horse race run annually in Louisville, Kentucky for decades prior to registration of the disputed domain name <kentucky derby.info> on September 14, 2001. Complainant is the registered owner of United States Trademark Registration No. 0997385 for the trademark KENTUCKY DERBY registered on November 5, 1974. The trademark is registered in relation to: “services rendered in connection with presenting horse races and providing information relating thereto through various forms of Media. First Use: 1875. First Use in Commerce: May 1925. Respondents’ webpage associated with the disputed domain name acknowledges that for over 125 years the Kentucky Derby has been everyone’s race.

A.4. Use in Bad Faith

Complainant submits upon information and belief, Respondents registered the disputed domain name because it is identical to Complainant’s KENTUCKY DERBY trademarks and <kentuckyderby.com> domain name. Respondents’ use of the disputed domain name, in conjunction with the unauthorized use of Complainant’s famous trademarks on the content of its website, is likely to deceive visitors into believing they are visiting a legitimate site owned by Complainant.

Complainant further submits upon information and belief, Respondents are using this website to deceive visitors to the site into believing they will win a free prize from Complainant if they enter their name and email address on the sub-page “www.kentuckyderby.info/kentuckyderby-gift.php” which is associated with the link “Free Derby Gift” appearing on Respondents’ web page.

Complainant submits upon information and belief, the owners of the domain name <allhorseracing.com>, a competitor of Complainant’s online wagering services, are utilizing this website in order to gather the names and email addresses of website visitors who falsely believe they are visiting a legitimate website for the KENTUCKY DERBY. Upon information and belief, these names and email addresses are then used by the owners of <allhorseracing.com> to market its competitive on line betting services to those visitors to Respondents’ website associated with the disputed domain name.

Complainant further submits upon information and belief, in operating the website associated with the disputed domain name Respondents are acting in bad faith by misleading consumers in order to market a competitor website, namely <allhorseracing.com>, thereby resulting in a commercial gain to the Respondents. This use is squarely within the definition of bad faith as set out in the Policy.

B. Respondents

Respondents named by the Registrar did not reply to Complainant’s contentions.

6. Discussion and Findings

Procedural Issue

On May 16, 2012 Christopher Bradford of Victoria, British Columbia, Canada forwarded an e-mail to the Center making certain submissions and requesting that the board reconsider taking my domain away from me. The Center responded the same day advising Mr. Bradford the specified due date for submission of a Response has now passed, and the Rules make no express provision for the filing of materials by either party at this stage of the proceedings except as may be specifically requested by the Panel. The Center advised Mr. Bradford that it would alert the Panel of his communication and further advised that it will be at the sole discretion of the Panel as to whether it wishes to consider such communication, and further procedural steps that may be required if any.

Complainant filed the original Complaint on April 13, 2012 naming the privacy proxy registration service WhoisProtector Inc., which is a generic service offered by registrars to cloak the actual registrant. In response to the registration verification request forwarded to the Registrar of the disputed domain name the Registrar informed the Center on April 13, 2012 that the details of the actual Respondent of the disputed domain name is Jalapeno Ventures Ltd. of Charlestown , NA, NA KN. Complainant filed an amended Complaint on April 17, 2012 adding Jalapeno Ventures Ltd. as a Respondent and served the amended Complaint on Jalapeno Ventures Ltd as well as others of record. Complainant attached as an annex to the Complaint a current WhoIs history search of the disputed domain name <kentuckyderby.info> which showed that as of April 23, 2009 the disputed domain name was registered by a person called Leonard Manley of Jalapeno Ventures Ltd. of Charlestown, KN.

The due date for Response to the amended Complaint was May 8, 2012. When a Response was not timely filed, a Notification of Respondent default was forwarded to the Respondents of record on May 9, 2012. The e-mail forwarded by a person called Christopher Bradford on May 16, 2012 did not conclude with the required certification that the information contained in the Response is to the best of Respondents’ knowledge complete and accurate as required by paragraph 5(viii) of the Rules. Furthermore Mr. Bradford did not state when he first became aware of the amended Complaint or provide any reasons for the delay in filing the e-mail or explaining why the Registrar and earlier WhoIs records show Jalapeno Ventures Ltd. is the registrant of the disputed domain name. Pursuant to paragraph 10(c) of the Rules the Panel shall ensure that the administrative proceeding takes place with due expedition. It may, on its own motion, extend, in exceptional cases, the time fixed by the Rules.

The Panel finds that Mr. Bradbury has not established exceptional circumstances warranting a further delay in this case necessitating Complainant to add a further Respondent and extend the time for Mr. Bradbury to file a proper response to a further amended Complaint.

Substantive issues

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(i) the disputed domain name registered by Respondents is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) Respondents have 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.

The fact that Respondents did not submit a Response does not automatically result in a decision in favor of Complainant. The failure of Respondents to file a Response results in the Panel drawing certain inferences from Complainant’s evidence. The Panel may accept all reasonable and supported allegations and inferences following there from in the Complaint as true. Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403.

A. Identical or Confusingly Similar

Pursuant to paragraph 4(a)(i) of the Policy, Complainant must establish rights in a trademark and secondly that the disputed domain name is identical or confusingly similar to the trademark in which Complainant has rights.

Complainant is the owner of numerous trademark registrations for or including KENTUCKY DERBY registered on the Principal Register in the United States of America. Complainant is the registered owner of United States Trademark Registration No. 997,385 for the trademark KENTUCKY DERBY registered on November 5, 1974. The trademark is registered in relation to: “services rendered in connection with presenting horse races and providing information relating thereto through various forms of media.” First Use: 1875. First Use in Commerce: May 1925.

The disputed domain name <kentuckyderby.info> incorporates the entirety of Complainant’s trademark KENTUCKY DERBY. Prior UDRP panels have found that domain names are confusingly similar to trademarks when the domain name incorporates the trademark in its entirety. See, e.g., PepsiCo. Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696 (a domain name is “nearly identical or confusingly similar” to a complainant’s mark when it “fully incorporate[s] said mark”; holding <pepsiadventure.net>, <pepsitennis.com>, and other domains confusingly similar to the complainant’s PEPSI mark) and Playboy Enterprises International, Inc. v. Zeynel Demirtas, WIPO Case No. D2007-0768.

The inclusion of the top level domain descriptor “.info” in the disputed domain name does not affect a finding of confusing similarity. Prior UDRP panels have repeatedly held that the specific top level of the domain name such as “.org”, “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar (see Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525, holding that confusing similarity under the Policy is decided upon the inclusion of a trademark in the domain name; and Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429, finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

The Panel finds that Complainant has proven that the disputed domain name <kentuckyderby.info> is identical or confusingly similar to Complainant’s trademarks for or including KENTUCKY DERBY.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondents have no rights or legitimate interests in respect of the disputed domain name.

Respondents are not affiliated with Complainant and have never been authorized by Complainant to use Complainant’s registered trademarks or any trademarks confusingly similar thereto. The registration of the KENTUCKY DERBY trademarks preceded the registration of the disputed domain name by over 15 years. Complainant’s use of its KENTUCKY DERBY registered trademarks in the United States preceded the date of registration of the disputed domain name by over 100 years. Previous UDRP panels have found that in the absence of any license or permission from a complainant to use widely-known trademarks, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed. See, LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2010-0138.

The website associated with the disputed domain name includes numerous links to competitors of Complainant. The link “ Kentucky Derby Betting” provides active links to numerous on line betting firms which are in direct competition with Complainant who provides on line betting services. Respondents’ first listed on line betting service is <allhorseracing.com>. Following the filing of the original Complaint, the concerned Registrar informed the Center that Respondent WhoisProtector Inc. is acting as a registration proxy service for Jalapeno Ventures Ltd. of Charlestown, St. Kitts-Nevis who, upon information and belief, are the owners of a competing online wagering service. As noted in the original Complaint, Jalapeno Ventures Ltd. is the owner of United States Trademark Registration No. 4,085,633 for the design mark ALLHORSERACING.COM. The Domain Tools WhoIs database record for the domain name <www.allhorseracing.com> looks identical to that of the domain at issue in the Amended Complaint, namely, “WhoisProtector” is the named registrant, DomainPeople, Inc. is the named registrar, and the name servers are <xiitec.com>.

A further link on Respondents’ website associated with the disputed domain name is “Free Derby Gift!”. The Free Derby gift link resolves to a page stating : “To celebrate the fun and excitement of this years Kentucky Derby, our sponsor is offering all our visitors a 20% Bonus on the Kentucky Derby. To claim your FREE gift, please submit your first name and e-mail address below and you will be sent an e-mail with your gift details. The terms and conditions associated with the free gift offer include the limitation: ”Availability of gifts is limited.” The sponsor is not identified, but the Panel infers that Respondents is receiving pay per click income from the sponsor from Internet users seeking a free gift.

A further link on Respondents’ website associated with the disputed domain name is “Contact Us”. This link Resolves to a webpage including the offer: “For partnerships or advertising inquiries, please e-mail the webmaster.” The Panel infers that Respondents are using this link to attract business. The preceding invitation is followed by the disclaimer: “Kentucky derby info is an information site only. There is no affiliation with Churchhill Downs.” The Panel concludes that Respondents are using the disputed domain name to attract advertising business. Advertising involves the communication of information about goods or services to attract the public to purchase the goods or services. The Panel finds that the disclaimer that ”Kentucky Derby is an information site only” is inconsistent with Respondents’ activities such as providing links to a list of online betting companies who are competitors of Complainant’s on line betting services.

The disclaimer is also inconsistent with the fact that Respondents’ webpage associated with the disputed domain name includes a number of Complainant’s trademarks in addition to Complainant’s KENTUCKY DERBY trademark. Complainant is also the owner of additional trademarks on the Principal Register in the United States that are being used without authorization on Respondents’ website, including “KENTUCKY DERBY 138” logo, which is actually the trademark protected design for the 135th Kentucky Derby, but which the Respondents have altered to reference the current year’s Derby, namely “138”. In addition, Complainant has trademark registrations for the horseshoe and rose design, as listed in an annex to the Complaint, and Respondents are making unauthorized use of that design mark as well on the webpage associated with the disputed domain name.

There is no evidence that Respondents are commonly known by the disputed domain name or are making a legitimate noncommercial or fair use of the disputed domain name. See, The Caravan Club v. Mrgsale, NAF Claim No. 95314 (domain name <thecaravanclub,com>; registration of a well-known trademark by a party with no connection to the owner of the trademark and no authorization and no legitimate purpose to utilize the mark reveals bad faith); see also CBS Broadcasting Inc. v. Worldwide Webs, Inc., WIPO Case No. D2000-0834.

It is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a disputed domain name. Respondents were given the opportunity by way of reply to demonstrate any rights or legitimate interests in the disputed domain name pursuant to paragraph 4(c) of the Policy. Previous decisions under the Policy have found it sufficient for a complainant to make a prima facie showing that a respondent does not have any rights or legitimate interests in the disputed domain name. Once this showing is made, the evidentiary burden shifts to respondent to demonstrate its rights or legitimate interests in the disputed domain name. Respondents did not file a Response nor avail itself of the benefits of paragraph 4(c) of the Policy.

The Panel finds that Complainant has proven on a balance of probabilities that Respondents do not have any rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Pursuant to paragraph 4(a)(iii) of the Policy, Complainant must prove that the disputed domain name has been registered and used in bad faith.

C. 1 Registered in Bad Faith

Complainant has established that it is the owner of numerous registered trademarks for and including KENTUCKY DERBY. The Kentucky Derby is one of best known horse races in the world and was first used more than a century and a quarter prior to registration of the disputed domain name. The web page associated with the disputed domain name includes other trademarks of Complainant including a “KENTUCKY DERBY 138” logo, which is actually Complainant’s trademark protected design for the 135th Kentucky Derby, but which the Respondents have altered to reference the current year’s Derby, namely“138”. In addition, Respondents are making unauthorized use on the web page associated with the disputed domain name of Complainant’s trademark registrations for the “horseshoe and rose” design that is listed in the Complaint as one of Complainant’s registered trademarks.

The Panel finds that the disputed domain name was registered in bad faith with full knowledge of Complainant’s well known KENTUCKY DERBY trademarks.

C.2. Domain Name Used in Bad Faith

Paragraph 4(b)(iv) of the Policy provides that using a domain name to intentionally attempt to attract Internet users to your website for commercial gain by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of a respondent’s website constitutes evidence of bad faith use of a domain name.

Respondents’ webpage associated with the disputed domain name include links to entities providing products and services related to the kind of products and services offered by Complainant as described in section 6(B) above. The Panel infers that the links to third party websites on the web page associated with the disputed domain name result in pay per click income to Respondents. Respondents’ use of the disputed domain name which is confusingly similar to Complainant’s registered trademarks for or including KENTUCKY DERBY as the distinctive elements enables Respondents to draw Internet users to their website for profit by misleading Internet users associating the disputed domain name with Complainant. Linking to websites of institutions that are active in the same field as Complainant is evidence of bad faith use. See, e.g., Google Inc. v. Forum LLC, NAF Claim No. 1053323 (finding bad faith registration and use where <googlenews.com> resolves to a commercial search engine website generating click-through advertising fees); Brink’s Network, Inc. v. Jenny Ho, brinksplacetv.com, WIPO Case No. D2009-0530 (“Where, as here, the disputed domain name is used to link, inter alia, to websites of the [c]omplainant’s competitors, a holding of bad faith use will typically follow.”)

The Panel finds that Complainant has proven on a balance of probabilities that Respondents have used the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy, and that Complainant satisfies the requirement under paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <kentuckyderby.info> be transferred to Complainant.

Ross Carson
Sole Panelist
Dated: May 29, 2012

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