WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
American Golf Corporation v. The Perfect Web Corporation
Case No: D2000-0908
1. The Parties
The Complainant in this administrative proceeding is American Golf Corporation, a California corporation with a principal place of business at 2951 28th Street, Santa Monica, California 90405-2961, U.S.A. The Respondent is The Perfect Web Corporation, whose address is 411 East Atlantic Avenue, #6, Delray Beach, Florida 33483, U.S.A.
2. The Domain Name and Registrar
The domain name in dispute is as follows: americangolf.net. The domain name was registered by Respondent with Network Solutions, Inc. (NSI) on February 9, 1999.
3. Procedural Background
On August 1, 2000, the WIPO Arbitration and Mediation Center received from Complainant via e-mail a complaint for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, 1999 ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules). An "Amendment to Complaint," dated August 11, 2000, was received by WIPO via e-mail on August 12, 2000.
The complaint was filed in compliance with the requirements of the Rules and the Supplemental Rules, payment was properly made, the administrative panel was properly constituted, and the panelist submitted the required Statement of Acceptance and Declaration of Impartiality and Independence.
The instant Administrative Proceeding was commenced on September 13, 2000.
Respondent did not file a Response, and a "Notification of Respondent Default," dated October 4, 2000, was forwarded to Respondent by WIPO.
The decision of the Panel was due to WIPO on or before October 24, 2000.
4. Factual Background
As set forth in the Complaint, Complainant is the owner of the mark AMERICAN GOLF for use with a wide variety of golf-related goods and services. The mark has been in use with the goods since 1983. Complainant owns several registrations in the United States and throughout the world (including in Australia, France, Germany, Hong Kong, China, Mexico, and the United Kingdom) for marks that incorporate the term AMERICAN GOLF. These include, by way of example, U.S. Registration No. 1,484,656 for the mark AMERICAN GOLF CORPORATION, as used in connection with golf course services; U.S. Registration No. 1,514,170 for AMERICAN GOLF MAGAZINE, as used on magazines relating to golfing; and U.S. Registration No. 1,553,703 for a design consisting of a "stylized golf ball set against a stylized flag," as used on a golf magazine and on clothing. See Complaint, Exhibit C. Complainant advertises its goods and services under the mark AMERICAN GOLF. See Complaint, Exhibit D.
As noted above, Respondent registered the domain name in dispute on February 9, 2000. The domain name is not being used in connection with a bona fide offering of goods or services. Exhibit E to the Complaint, which is a screen shot of Respondent's Web site, as it appeared on July 20, 2000, indicates that "This URL is FOR SALE" and "Make an Offer." The site also features a golf ball and American flag logo.
On May 18, 2000, Complainant's counsel wrote to a Mr. Thomas L. DiStefano, III, of The Up-Tick, Inc., demanding that the domain name in dispute be transferred to Complainant. When no response to this letter was received, Complainant's counsel contacted Respondent by phone on July 26, 2000. Counsel was informed that the administrative contact was unavailable but would be in shortly. This call, as well as a subsequent fax communication, were not returned or answered.
5. Parties' Contentions
Complainant contends that the domain name in issue is identical or confusingly similar to its AMERICAN GOLF and "golf ball and flag" marks; that there is no evidence that Respondent has any rights or legitimate interests in the domain name; and that Respondent registered and used the domain name in "bad faith." With respect to the latter contention, Complainant asserts that persons encountering Respondent's Web site will believe it emanates from, is endorsed by, or is licensed by Complainant. Complainant further contends that Respondent registered the domain name primarily for the purpose of selling the domain name registration.
6. Discussion and Findings
The Panel has carefully weighed the evidence presented and determines that Complainant has met the requirements set forth in ¶4.a. of the Policy.
There is no question that the domain name in dispute is identical or confusingly similar to marks in which Complainant has rights. The domain name incorporates, in full, the AMERICAN GOLF mark, which Complainant has used since 1983. In addition, the golf ball and flag logo featured on Respondent's Web site is similar to the "ball and flag"- logo registered and used by Complainant.
The Panel further determines that Respondent has no rights or legitimate interests in the domain name, within the meaning of ¶4.c. of the Policy. Respondent is not using the domain name in connection with a bona fide offering of services, is not known by the domain name, and is not making a legitimate noncommercial or fair use of the domain name.
There is also sufficient evidence to support a determination of "bad faith" registration and use. The Panel finds that Respondent adopted its domain name with full knowledge of the existence of Complainant and its marks and, by using the domain name, intentionally attempted to attract, for commercial gain, Internet users to its site by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's Web site, within the meaning of ¶4.b. (iv) of the Policy. The evidence also establishes that Respondent registered the domain name primarily for the purpose of selling the name for "valuable consideration in excess of [its] documented out-of-pocket costs directly related to the domain name," within the meaning of ¶4.b. (i) of the Policy.
In view of the above, the Panel GRANTS Complainant's request for transfer to it of the domain name americangolf.net.
Jeffrey M. Samuels
Dated: October 23, 2000