Domain name – Domain name dispute resolution policy – Trademark – Identical – Legitimate rights – Bad faith.

Complainant owns the mark Sportpharma, and uses the website sportpharma.com to sell nutritional supplements on the Internet.  Respondent registered the domain name sportspharma.com.  This site redirected users to another site which also sells nutritional supplements.

Held, Name Transferred to Complainant.

Respondent’s mark is confusingly similar to the mark to which Complainant has rights.  Respondent has attempted to create confusion as to the location of Respondent’s website and the affiliation of the products advertised on Respondent’s site.

Respondent is not commonly known by the name, and instead is using the name to offer services which are in competition with Complainant.  It is clear that Respondent seeks to profit from the registration.  Thus, Respondent has no rights to the name.

Respondent was aware of the confusion that would result between the two sites.  This awareness and the intention to attract Internet users to a third party’s site for profit infers bad faith.

Policies referred to

Uniform Domain Name Dispute Resolution Policy

Panel decisions referred to

America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA93679 (Nat. Arb. Forum March 15, 2000).

Cunard Line Ltd. v. Champion Travel, Inc., FA92053 (Nat. Arb. Forum Mar. 7, 2000).

Hewlett-Packard Company v. Full System, FA94637 (Nat. Arb. Forum May 22, 2000).

Mariah Boats, Inc. v. Shoreline Marina, FA94392 (Nat. Arb. Forum May 5, 2000).

Johnson, Panelist: - 

REGISTRAR AND DISPUTED DOMAIN NAME(s) 

The domain name at issue is “SPORTSPHARMA.COM”, registered with
Network Solutions, Inc. (“NSI”).

PANELIST 

Honorable Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (“The
Forum”) electronically on 05/30/2000; The Forum received a hard copy of the
Complaint on 05/30/2000. 

On 05/31/2000, NSI confirmed by e-mail to The Forum that the domain name
“SPORTSPHARMA.COM” is registered with NSI and that the Respondent is the
current registrant of the name.  NSI has verified that Respondent is bound by the
Network Solutions Service Agreement Version 4.0 and has thereby agreed to
resolve domain-name disputes brought by third parties in accordance with
ICANN’s UDRP.

On 06/05/2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of 06/26/2000
by which Respondent could file a Response to the Complaint, was transmitted to
Respondent via email, post and fax, and to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts by email. 

On 06/26/2000, 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 June 27, 2000, pursuant to Complainant’s request to have the dispute decided
by a Single Member panel, The Forum appointed Honorable Carolyn Marks
Johnson as Panelist.

Having reviewed the communications records in the case file, the Administrative
Panel (the “Panel”) finds that The Forum has discharged its responsibility under
Paragraph 2(a) of the Uniform 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 the Respondent.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

The Complainant contends that the Respondent has registered a domain name that
is confusingly similar to its trademark registered for and in use by the Complainant. 
Further, the Complainant contends that the Respondent has no rights or legitimate
interests to the domain name, and that the respondent has registered and is using
the domain name in bad faith. 

B.     Respondent

The Respondent submitted no response in this matter.

FINDINGS

The Complainant owns the United States trademark SPORTPHARMA (filed
5/16/1994; registered 08/15/1995; No. 1,911,037) for nutritional supplements. 
The Complainant uses the website <sportpharma.com> to sell its products on the
Internet.

The Respondent registered the website <sportspharma.com> on 09/23/2000.

The Complainant sent a letter to the Respondent on May 8, 2000 informing the
Respondent of the likelihood of confusion between the two domain names.  At the
time of the letter, the Respondent’s site redirected users to the site,
www.ppfn.com, which is a retailer of nutritional supplements, including those
supplements manufactured by the Complainant. 

DISCUSSION 

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy (“Policy”)
directs that the complainant must prove each of the following three elements to
support a claim 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.

The Complainant has offered exhibits in support of its claims, whereas the
Respondent has submitted no response in the matter.  The Respondent’s failure to
dispute the allegations of the Complainant permits the inference that the
Complainant’s allegations are true.  Further, the Respondent’s failure to respond
permits the inference that the Respondent knows that its website is misleading and
is intentionally diverting business from the Complainant.  See Hewlett-Packard
Company v. Full System, FA 94637 (Nat. Arb. Forum May 22, 2000). 
Applying the Policy to the issue in this case furthers these inferences.

Identical and/or Confusingly Similar

Complainant has rights in the mark “SPORTSPHARMA.COM”.

The Respondent’s mark is confusingly similar to the Complainant’s mark. 
Respondent has simply added an “S” after the word “sport”.  By infringing upon
the Complainant’s marks, the Respondent is attempting to create confusion as to
the location of the Respondent’s website and the affiliation of the products
advertised on the Respondent’s website.  See America Online, Inc. v. Avrasya
Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum March 15, 2000)
(holding that the Respondent’s domain name, <americanonline.com>, and the
Complainant’s domain name, <americaonline.com>, were confusingly similar). 

Rights or Legitimate Interests

The Respondent does not assert any rights or legitimate interests to the domain
name in question. 

The name does not reflect a name by which the Respondent is commonly known. 
Policy  4(c)(ii).  Rather, the Respondent is using a portion of the Complainant’s
registered and well-known mark to offer competing services.

The Panel finds that the Respondent is not using the domain name in connection
with a bona fide offering of goods and services nor is making a legitimate
noncommercial or fair use of the site.  Policy  4(c)(I), (iii). Instead, the Respondent
seeks to profit from its registration of said domain name by offering competing
services and trading upon the image associated with the Sportpharma name.  Policy
 4(c)(I), (iii).  See Cunard Line Ltd. v. Champion Travel, Inc., FA 92053 (Nat.
Arb. Forum Mar. 7, 2000) (finding that the Respondent had no rights or legitimate
interests in the domain name <cunardcruise.com>). 

For these reasons, the panel finds that the Respondent has no rights or legitimate
interests in the domain name.

Bad Faith

The Respondent does not deny that its actions were taken in bad faith.

The Respondent registered and is using the domain name in question to intentionally
attract Internet users to a third party’s website for its commercial gain.  Policy 
4(b)(iv). When Internet users are linked to the third party’s site, they cannot know
that they are not on the official “Sportpharma” website. Based on the
Complainant’s well-known trademark, the Respondent knew that confusion
between the two websites would result.  The Complainant would lose customers
and business would be disrupted as a result of the Respondent’s infringing website. 
Policy  4(b)(iii).  See Mariah Boats, Inc. v. Shoreline Marina, FA 94392 (Nat.
Arb. Forum May 5, 2000). 

Based on the preceding facts, the panel finds that the Respondent registered and is
using the domain name in bad faith.

DECISION

Having established all three elements required by the ICANN Policy Rule 4(a), it is
the decision of the panel that the requested relief be granted. 

Accordingly, for all of the foregoing reasons, it is ordered that the domain name,
“SPORTSPHARMA.COM” be transferred from the Respondent to the
Complainant.