DECISION

National Collegiate Athletic Association v. Universal Internet Technologies, Inc.

Claim Number: FA0105000097295

PARTIES

Complainant is National Collegiate Athletic Association, Indianapolis, IN, USA (“Complainant”) represented by Scott A. Bearby of National Collegiate Athletic Association.  Respondent is Universal Internet Technologies, Inc., London, UK (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <ncaawager.com>, <finalfoursportsbook.com>, <finalfoursportsbooks.com>, <final4sportsbook.com>, <final4sportsbooks.com>, <marchmadnesssportsbooks.com>, <marchmadnessportsbook.com>, <ncaasportbooks.com>, and <ncaasportsbooks.com> registered with Tucows, Inc.

PANEL

On  June 20, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele   as Panelist. The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 21, 2001; the Forum received a hard copy of the Complaint on May 23, 2001.

On May 22, 2001, Tucows, Inc. confirmed by e-mail to the Forum that the domain names <ncaawager.com>, <finalfoursportsbook.com>, <finalfoursportsbooks.com>, <final4sportsbook.com>, <final4sportsbooks.com>, <marchmadnesssportsbooks.com>, <marchmadnessportsbook.com>, <ncaasportbooks.com>, and <ncaasportsbooks.com> are registered with Tucows, Inc. and that Respondent is the current registrant of the name.  Tucows, Inc. has verified that Respondent is bound by the Tucows, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with  IANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On May 23, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 12, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@ncaawager.com, postmaster@finalfoursportsbook.com, postmaster@finalfoursportsbooks.com, postmaster@final4sportsbook.com, postmaster@final4sportsbooks.com, postmaster@marchmadnesssportsbooks.com, postmaster@marchmadnessportsbook.com, postmaster@ncaasportbooks.com, and postmaster@ncaasportsbooks.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The disputed domain names are confusingly similar to Complainant’s registered marks.

Respondent has no rights or legitimate interests in the disputed domain names.

Respondent registered and used the disputed domain names in bad faith.

B. Respondent

No response was received.

FINDINGS

Since 1911, National Collegiate Athletic Association (“NCAA”) has used its famous NCAA registered mark in connection with intercollegiate athletics, including the NCAA Championships, the televising of NCAA athletic events, sports news, entertainment and information on television.  Complainant has also used its FINAL FOUR and MARCH MADNESS marks in connection with similar services since their registrations with the United States Patent and Trademark Office.  During the 2000 Men’s NCAA FINAL FOUR, the games were broadcast to an estimated 141 million households outside the United States in 119 countries, including 48,553,570 households in Europe.

The <ncaawager.com> domain name was registered on August 4, 2000.  The <finalfoursportsbook.com>, <finalfoursportsbooks.com>, <final4sportsbooks.com>, <final4sportsbook.com>, <marchmadnesssportsbooks.com> and <marchmadnessportsbook.com> domain names were registered on February 27, 2001.  Lastly, the <ncaasportbooks.com> and <ncaasportsbooks.com> domain names were registered on March 11, 2001.  The disputed domain names were linked to a website, run by Respondent, which provided gambling services.

DISCUSSION

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

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

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

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

The <ncaawager.com>, <finalfoursportsbook.com>, <finalfoursportsbooks.com>, <marchmadnesssportsbooks.com>, <marchmadnessportsbook.com>, <ncaasportbooks.com>, and <ncaasportsbooks.com> domain names contain the mark of the Complainant, in their entirety, combined with generic words or terms.  The addition of a generic word or term to Complainant’s marks makes the domain names in dispute confusingly similar to Complainant’s marks.  See Arthur Guinness Son & Co. (Dublin) Ltd.  v. Tim Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term); see also Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark).

Furthermore, the <final4sportsbooks.com> and <final4sportsbook.com> domain names are confusingly similar to Complainant’s FINAL FOUR mark in that the disputed domain names merely replace the word “four” with its numeric equivalent, the mark’s pronunciation remains unaffected.  See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that the pronunciation and spelling between the domain name <venesign.com> and the Complainant’s mark, VeriSign, are so close that confusion can arise in the mind of the consumer).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward to demonstrate any rights or legitimate interests in the disputed domain names.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent any evidence of preparation to use the domain name for any legitimate purpose, the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests).  Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to the domain name in dispute where Respondent fails to submit a response.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that “Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names”).

Respondent’s registration and use of the disputed domain names to redirect Internet users to its website does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).  See Société des Bains de Mer v. International Lotteries, D2000-1326 (WIPO Jan. 8, 2001) (finding no rights or legitimate interests where Respondent used the <casinomontecarlo.com> and <montecarlocasinos.com> domain names in connection with an online gambling website); see also Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests where Respondent diverted Complainant’s customers to his websites).

There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the disputed domain names, pursuant to Policy ¶ 4(c)(ii).  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

Furthermore, there is no evidence that demonstrates Respondent is making a legitimate noncommercial or fair use of the disputed domain names pursuant to Policy ¶ 4(c)(iii), when Respondent links the disputed domain names to a website which provides gambling services.  See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).

The Panel therefore concludes that Respondent does not have any rights or legitimate interests in the disputed domain names and that Policy ¶ 4(a)(ii) has been satisfied.

           

Registration and Use in Bad Faith

Respondent’s registration and use of the disputed domain names, for commercial gain, creates a likelihood of confusion with Complainant’s marks in violation of  Policy ¶ 4(b)(iv).  See Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked the domain name <marssmusic.com>, which is identical to Complainant’s mark, to a gambling website); see also State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the Respondent registered the domain name <statefarmnews.com> in bad faith because Respondent intends to use Complainant’s marks to attract the public to the web site without permission from Complainant).

Furthermore, bad faith is evidenced by the obvious connection the disputed domain names have with Complainant’s enterprise, as they incorporate Complainant’s famous marks in their entirety.  Based on the totality of the circumstances, Respondent’s registration and use of the disputed domain names to redirect Internet users to a Respondent’s website, providing gambling services, supports a finding of bad faith.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”); see also Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (finding that the fact “that the Respondent chose to register a well known mark to which he has no connections or rights indicates that he was in bad faith when registering the domain name at issue”).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

Accordingly, it is Ordered that the <ncaawager.com>, <finalfoursportsbook.com>, <finalfoursportsbooks.com>, <final4sportsbook.com>, <final4sportsbooks.com>, <marchmadnesssportsbooks.com>, <marchmadnessportsbook.com>, <ncaasportbooks.com>, and <ncaasportsbooks.com> domain names be transferred from Respondent to Complainant.

 James P. Buchele, Panelist

Dated:  June 25, 2001

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