DECISION

Magglio Ordonez c/o Reich, Katz & Landis Baseball Group v. Clemente Lozano

Claim Number:  FA0304000154595

PARTIES

Complainant is Magglio Ordonze, c/o Reich, Katz, & Landis Baseball Group, Coral Springs, FL, USA (“Complainant”) represented by Jay K. Reisinger and Richard O’Neill Earley, of Reich, Alexander & Reisinger. Respondent is Clemente Lozano, Caracas, VE (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <magglioordonez.com>, registered with Go Daddy Software, Inc.

PANEL

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.

Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 15, 2003; the Forum received a hard copy of the Complaint on April 18, 2003.

On April 16, 2003, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <magglioordonez.com> is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On April 23, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 13, 2003 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@magglioordonez.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.

On May 15, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin as Panelist.

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 name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <magglioordonez.com> domain name is identical to Complainant’s MAGGLIO ORDONEZ mark.

2. Respondent does not have any rights or legitimate interests in the <magglioordonez.com> domain name.

3. Respondent registered and used the <magglioordonez.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Magglio Ordonez c/o Reich, Katz & Landis Baseball Group, is a professional baseball player with Major League Baseball’s (MLB) Chicago White Sox. Complainant began his professional career with MLB in 1997. Since then, he has been selected by fans of MLB to the American League All-Star Team three times, in 1999, 2000 and 2001, and was selected by managers and coaches to receive the Silver Slugger Award twice. Complainant became the seventh player in MLB history to hit .300, with 40 doubles, 30 home runs, 100 RBIs and 25 stolen bases in three consecutive seasons.

Complainant is party to endorsement contracts with corporations such as Nike, McDonald’s and Wilson Sporting Goods. He is also one of two players in MLB to pledge to remain free of performance-enhancing drugs. Pursuant to this cause, Complainant contributes to the Blue Cross and Blue Shield’s “Healthy Competition Foundation,” and is also very active in the Chicago area’s Hispanic community, helping to raise money for charities. Complainant holds a domain name registration at <magglioordonez.org>.

Respondent, Clemente Lozano, registered the <magglioordonez.com> domain name on May 28, 2002. Respondent has never made use of the disputed domain name.

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

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:

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

(2) 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

Complainant has established common law rights in the MAGGLIO ORDONEZ mark. Establishing common law rights in a mark, as opposed to proof that a mark has been registered, is sufficient to grant standing to bring a domain name dispute under the UDRP. See Jagger v. Hammerton, FA 95261 (Nat. Arb. Forum Sept. 11, 2000) (Complainant held common law trademark rights in his famous name MICK JAGGER); see also MPL Communications Ltd v. Hammerton, FA 95633 (Nat. Arb. Forum Oct. 25, 2000) (Complainant owned common law rights to the name Paul McCartney).

Respondent’s <magglioordonez.com> domain name is identical to Complainant’s MAGGLIO ORDONEZ mark. The elimination of the space in the mark and the addition of the “.com” are both inconsequential for the purposes of Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name <wembleystadium.net> is identical to the WEMBLEY STADIUM mark).

Accordingly, the Panel finds that the <magglioordonez.com> domain name is identical to Complainant’s MAGGLIO ORDONEZ mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Complainant carries the initial burden of demonstrating that Respondent has no rights or legitimate interests in the disputed domain name. Complainant is able to meet this burden by showing that Respondent would not be able to rely upon the examples of circumstances demonstrating rights or legitimate interests in a domain name listed in Policy ¶¶ 4(c)(i)-(iii). In making such a showing, Complainant establishes a prima facie case against Respondent, shifting the burden to Respondent. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding where a Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).

Respondent has held the domain name registration for the <magglioordonez.com> domain name for nearly a year. During that time, Respondent has done nothing to develop a website. Non-use of a domain name, without any demonstrable preparations to use it, cannot be a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). Similarly, non-use of a domain name for almost a year does not evidence a legitimate noncommercial or fair use of a domain name pursuant to Policy ¶ 4(c)(iii). See Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”); see also Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in the domain name).

Respondent is named “Clemente Lozano,” and as there is no additional evidence before the Panel stating otherwise, the Panel is unwilling to find that Respondent is “commonly known by” the disputed domain name as contemplated by Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <magglioordonez.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered and used the disputed <magglioordonez.com> domain name in bad faith. While there are no doubt many individuals with the name MAGGLIO ORDONEZ in the world, nothing before the Panel controverts the conclusion that Respondent registered the disputed domain name because it duplicated the name of Complainant, a famous professional baseball player. Appropriating Complainant’s common law mark, and then not making any use of the domain name for nearly a year, is strong evidence that Respondent registered and used the disputed domain name in bad faith. See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (Nov. 26, 2000) (finding bad faith where (1) Respondent failed to use the domain name and (2) it is clear that Respondent registered the domain name as an opportunistic attempt to gain from the goodwill of the Complainant); see also Phat Fashions v. Kruger, FA 96193 (Nat. Arb. Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though Respondent has not used the domain name because “It makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”).

The Panel thus finds that Respondent registered and used the <magglioordonez.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <magglioordonez.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  May 19. 2003

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