Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Brown & Bigelow, Inc., St. Paul, MN, USA ("Complainant") represented by Gregory C. Golla, Merchant & Gould. The Respondent is Site Ads Inc., Ft. Lauderdale, FL, USA ("Respondent").

The domain name at issue is "hoylecasino.com" registered with Tucows.

On December 29, 2001, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed James P. Buchele as Panelist. The undersigned panelist certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on November 28, 2000; The Forum received a hard copy of the Complaint on November 28, 2000.

On December 4, 2000, Tucows confirmed by e-mail to the Forum that the domain name "hoylecasino.com" is registered with Tucows and that the Respondent is the current registrant of the name. Tucows has verified that Respondent is bound by the Tucows registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the "Policy").

On December 4, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 26, 2000 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@hoylecasino.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 Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

A. Complainant

Complainant contends that Respondentís domain name, hoylecasino.com, is confusingly similar to its famous mark, HOYLE. Also, Complainant asserts that Respondent has no rights or legitimate interests in the domain name at issue. And finally, Respondent has acted in bad faith by deliberately trading off of the goodwill associated with the Complainantís famous mark.

B. Respondent

Respondent has failed to submit a response in this matter.

Complainant, Brown & Bigelow, Inc., produces cards, games, and other gaming-type materials under the "HOYLE" mark. Complainant has used the mark in connection with various game products since 1960. Complainant receives substantial royalties from the authorized licensing of the "HOYLE" mark in connection with computer software games, such as "HOYLE CASINO", as well as other combinations of the Complainantís mark with various gaming terms.

Respondent, Site Ads Inc., has used the domain name at issue in connection with online gambling activities as well as pornographic related uses.

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.

According to the UDRP, Complainant must demonstrate that it has rights in a mark, and that the domain name at issue is identical or confusingly similar to that mark.

Complainant has exclusive rights in the registered mark HOYLE. Respondentís domain name is found to be confusingly similar to the Complainantís registered mark. Policy  4.a.(i). The domain name in question is comprised of Complainantís mark and a generic gaming term, which makes the domain name confusingly similar to Complainantís mark. See The Body Shop Intíl. PLC v. CPIC NET and Syed Hussain, D2000-1214 (Nov. 26, 2000) (finding that the domain name <bodyshopdigital.com> is confusingly similar to the Complainantís said <THE BODY SHOP> trademark); see also Space Imaging LLC v. Brownwell, AF 0298 (eResolution Sept 22, 2000) (finding confusing similarity where the Respondentís domain name combines the Complainantís mark with a generic term that has an obvious relationship to the Complainantís business).

The Panel finds that Complainant met its burden of showing that the domain name at issue is confusingly similar to Complainantís mark.

Respondent asserted no rights or legitimate interests in the domain name at issue. Respondent is not commonly known by the domain name, nor is Respondent using the domain name in connection with a bona fide offering of goods, services, or for a legitimate noncommercial or fair use. Policy  4.c.(i), (ii) and (iii).

Consequently, Respondentís failure to show evidence sufficient to rebut Complainantís allegations, entitles the Panel to conclude that Respondent has no such rights or legitimate interests in regard to the domain name in question. See Woolworths plc. v. David 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 Respondent to demonstrate that he has rights or legitimate interests).

The Panel finds that Respondent has no rights to or legitimate interests in the domain name at issue.

Respondent has demonstrated bad faith by attracting Internet users, strictly for commercial gain, to its web site via a likelihood of confusion with the Complainantís mark. See America Online, Inc. v. Xianfeng Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the Respondent intentionally attempted to attract Internet users to his web-site for commercial gain by creating a likelihood of confusion with the Complainantís mark by offering the same chat services via his web-site as the Complainant).

Further, Respondent has tarnished the Complainantís mark by associating its mark with pornographic web site links, which also substantiates bad faith. See MatchNet plc. V. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that association of confusingly similar domain name with pornographic web site can constitute bad faith); see also Youtv, Inc. v. Mr. Erkan Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users to his web site for commercial gain and linked his web site to pornographic web sites).

Finally, the Respondent has registered at least fifty domain names not related to its business, constituting a pattern of conduct, which also shows bad faith. Policy  4.b.(ii). See Harcourt, Inc. v. Jeff Fadness, FA 95247 (Nat. Arb. Forum Sept. 8,2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy  4.b.(ii)); see also Armstrong Holdings, Inc. v. JAZ Assoc. FA 95234 (Aug. 17, 2000) (finding that the Respondent violated Policy  4.b.(ii) by registering multiple domain names which infringe upon othersí famous and registered trademarks).

Therefore, the Panel finds that Respondent has registered and used the domain name at issue in bad faith.

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted. Accordingly, it is Ordered that the domain name hoylecasino.com be transferred from Respondent to Complainant.