Respondent is using the subject domain names to direct Web users to its HotLivescore.com website, which markets a service that is identical to, and directly competes with, Complainant’s services at LiveScore.com (see Exhibits B and J). Appropriating Complainant’s trademark to promote a competing service with confusingly similar domain names is not a bona fide offering of a good or service pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Clear Channel Commc’ns, Inc. v. Beaty Enters., FA 135008 (NAF Jan. 2, 2003) [finding that the respondent, as a competitor of the complainant, had no rights or legitimate interests in a domain name that utilized the complainant’s mark for its competing website]; see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (NAF June 23, 2003) [holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods or services].
Furthermore, Respondent is not commonly known, either as an individual, business or organization, by the names associated with the domain names. See Tercent Inc. v. Lee Yi, FA 139720 (NAF 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 Broadcomm Corp. v. Intellifone Corp., FA 96356 (NAF February 5, 2001) [finding no rights or legitimate interests because Respondent is not commonly known as the disputed domain name or using the domain name in connection with a legitimate or fair use]. Complainant notes that the WHOIS information lists “hotlive” as the registrant of HOTLIVESCORE.COM and “aaaaaaaaaaaaa” as the registrant of HOTLIVESCORE.NET, and nowhere in the WHOIS contact information is there reference made to the subject domains or the corresponding names (e.g. “Hotlivescore”), other than for particular domain names (see Exhibits H and I).
Complainant states that there is no affiliation, association or business relationship of any kind with Respondent and Complainant has not licensed or authorized Respondent to use LIVESCORE in any manner. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) [finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name]. In fact, Complainant and Respondent are direct competitors, both of which offer online access to real-time scores for sporting events (see Exhibits B and J). Given Complainant’s long established use of the LIVESCORE mark in the same market in which, some eight years later, Respondent began offering identical services, Respondent cannot claim to be commonly known by the subject domain names (see Exhibits C, H and I).
The Panel should note that there is, in fact, a substantial likelihood that Complainant’s mark LIVESCORE and the goodwill associated therewith, were the reasons Respondent registered the subject domains. Sizeable Web user traffic is generated from websites associated with widely known marks, and it appears that Respondent sought to take advantage of this circumstance with LiveScore.com. Misguided Web users seeking Complainant’s website may be confronted with the subject domain names and a reasonable user could assume that the subject domains are somehow connected to LiveScore.com.
Finally, Respondent is not making a non-commercial or fair use of the subject domain name. The HotLivescore.com site associated with the subject domain names is clearly commercial in nature and the subject domain names are being operated for the financial benefit of the Respondent (see Exhibit J). Specifically, the website includes advertisement for various gaming entertainment services, similar to the advertisers on Complainant’s LiveScore.com site (see Exhibits B and J; see also Ticketmaster Corp. v. DiscoverNet, Inc., Case No. D2001-0252 (WIPO April 9, 2001) [finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website].
Thus, Respondent has no legitimate interests in the subject domain names, as legitimate interests are defined in Section 4(c)(i)-(iii) of the UDRP and, therefore, the second element of the Complaint under Section 4(a)(ii) of the UDRP is also satisfied.
3. The Subject Domain Names Have Been Registered And Are Being Used In
Bad Faith
Respondent has registered and is using the confusingly similar subject domain names in bad faith under Sections 4(b)(ii), (iii) and (iv) of the UDRP.
Respondent registered the subject domain names within the past year, long after Complainant had adopted, used and registered the LIVESCORE trademark (see Exhibits C, H and I). The Respondent is using the subject domain names in connection with HotLivescore.com, in direct competition with Complainant’s real-time sports scores service (see Exhibits B and J).
Respondent registered HOTIVESCORE.COM on September 13, 2006 and HOTLIVESCORE.NET on October 8, 2006, long after Complainant adopted and registered the LIVESCORE mark (see Exhibits C, H and I). Moreover, when registering the subject domain names, Respondent was clearly aware of the existence of the Complainant and its trademark rights in that the only difference between the subject domain names and Complainant’s LIVESCORE mark is the addition of the term “hot” and the addition of the gTLDs “com” and “net” respectively (see Exhibits C, H and I). Respondent is using the subject domain names in connection with its own website, in direct competition with Complainant’s service (see Exhibits B and J).
After Complainant learned of the registration and use of the subject domains, legal counsel sent Respondent communications requesting that it (1) cease using the subject domain names and (2) transfer the domains to Complainant (see Exhibits L and M). Respondent never replied to the communications.
Addressing the Section 4(b)(ii) claim first, Respondent has registered and is using two domain names that incorporate Complainant’s well-known LIVESCORE trademark, actions that involve a pattern of conduct directed against the Complainant and stopping it from reflecting its trademark in corresponding domain names (see Exhibits C, H and I). A "pattern of conduct" as required under a Section (b)(ii) claim typically involves multiple domain names directed against multiple Complainants, but may also involve multiple domain names directed against a single Complainant. See Telstra Corporation Limited v. Ozurls, Case No. D2001-0046 (WIPO March 20, 2001) [Respondents' fifteen domain names involving Complainant’s mark and a series of services, products, geographical descriptors, or generic words obviously involves a pattern of conduct directed against the Complainant under 4(b)(ii)]. Hence, Respondent’s registration and use of two domain names that incorporate Complainant’s mark is in bad faith under Section 4(b)(ii) of the UDRP.
Addressing the Section 4(b)(iii) next, Respondent is clearly functioning as a competitor of Complainant by offering an identical real-time sport scores service in the same channel of trade associated with Complainant’s LIVESCORE mark and LiveScore.com website (see Exhibits B and J). Such unauthorized offering of services in connection with domain names that are confusingly similar to Complainant’s trademark is evidence that Respondent registered and is using the subject domain names in bad faith under 4(b)(iii) by registering the subject domains primarily to disrupt Complainant’s business. See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) [finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion]; see also S. Exposure v. S. Exposure, Inc., FA 94864 (NAF July 18, 2000) [finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business].
Turning to the Section 4(b)(iv) claim, Respondent has registered and is using the subject domain names in bad faith as Respondent attempts to attract, for commercial gain, Web users to a commercial online service that competes directly with Complainant’s real-time sports scores service (see Exhibits B and J). The HotLivescore.com website associated with the subject domains also features advertisement for gaming entertainment services (see Exhibit J). By selecting and using domain names that are confusingly similar to Complainant's mark to direct users to a website that offers a commercial service that competes with Complainant’s service, Respondent has acted in bad faith within the meaning of Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (NAF June 23, 2003) [finding that Respondent’s use of the <saflock.com> domain name to offer goods competing with Complainant’s illustrates Respondent’s bad faith registration and use of the domain name pursuant to Section 4(b)(iv)]; see also TM Acquisition Corp. v. Carrol, FA 97035 (NAF May 14, 2001) [finding bad faith where Respondent used the disputed domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant].
In addition, Respondent registered the subject domain names with constructive or actual knowledge of Complainant’s rights in LIVESCORE (see Exhibits C, H and I). Due to Complainant’s registration of the mark with the USPTO, constructive knowledge is conferred onto Respondent. See Orange Glo Int’l v. Blume, FA 118313 (NAF Oct. 4, 2002) [“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”]. Moreover, because of the similarity between the service found at Respondent’s website and Complainant’s services, the Panel should infer that Respondent has actual knowledge of Complainant’s rights in the LIVESCORE trademark. Registration of confusingly similar domain names despite constructive or actual knowledge is bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (NAF Oct. 24, 2002) [holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”].
Finally, Respondent has included blatantly false contact information to the WHOIS data for both domain names (see Exhibits H and I). Providing false contact information violates the UDRP, namely Section 2 of the Policy. ("you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate"). Furthermore, previous Panel decisions have found that providing false identification information is evidence of bad faith. See Florists' Transworld Delivery, Inc. v. United Pahlavi Trust, FA 811796 (NAF Nov. 13, 2006) [Respondent false information in its WHOIS registration is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii)]; see also Carfax, Inc. d/b/a Carfax v. Auto Check USA, Case No. D2001-0929 (WIPO Oct. 25, 2001) [Registrant's use of false identification information in the domain name’s registry record is evidence of bad faith]. Such action not only shows evidence of bad faith, it also shows contempt for the UDRP and the entire domain name registration system.
In light of the facts discussed above, the inescapable conclusion is that Respondent is attempting to benefit commercially from the confusion created by the registration and use of HOTLIVESCORE.COM and HOTLIVESCORE.NET, which are virtually identical and clearly confusingly similar to Complainant’s LIVESCORE trademark. Respondent’s activities in the instant case prove that the registration and use of the subject domains is in bad faith, as such registration and use is defined in Sections 4(b)(ii), (iii) and (iv) of the UDRP and, therefore, the third and final element of Mr. Jerie's Complaint under Section 4(a)(iii) of the UDRP is satisfied.
Based on the foregoing, Complainant submits that the evidence shows that the subject domain names are confusingly similar to the trademark in which Complainant has clear senior rights; the Respondent has no rights or legitimate interests in the domain names; and the subject domains have been registered and are being used in bad faith. Accordingly, Complainant requests that this Panel order the transfer of the subject domain names to Complainant, which holds clear senior rights in the LIVESCORE trademark. A decision by this Panel to preserve the status quo would serve only to reward Respondent for engaging in bad faith and unlawful conduct with respect to the domain name registrations, and would encourage others like Respondent to do the same.
[6.] REMEDY SOUGHT
Complainant requests that the Panel issue a decision that the registrations for the subject domain names be transferred to Complainant, pursuant to Paragraph 4(i) of the UDRP.
[7.] OTHER LEGAL PROCEEDINGS
No other legal proceedings have been commenced or terminated in connection with or relating to Respondent’s registration or use of the subject domain names.
[8.] COMPLAINT TRANSMISSION
Complainant asserts that a copy of this Complaint, together with the cover sheet as prescribed by NAF’s Supplemental Rules, has been sent or transmitted to the Respondent, in accordance with ICANN Rule 2(b) and to the registrar of the subject domain names, in accordance with NAF Supp. Rule 4(e).
[9.] MUTUAL JURISDICTION
The Complainant will submit, solely with respect to any challenges to a decision in the administrative proceeding canceling or transferring the subject domain names, to the jurisdiction of the courts of the State of Washington, USA, the location of the principal office of the concerned registrar.
[10.] CERTIFICATION
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