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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Independent Golf Research Inc. v. Whois Service

Case No. D2007-0732

 

1. The Parties

The Complainant is Independent Golf Research Inc., dba Dave Pelz Golf, of Spicewood, Texas, United States of America (the “Complainant”), represented by DLA Piper US LLP, United States of America.

The Respondent is Whois Service (the “Respondent”), of City of Belmopan, Belize.

2. The Domain Name and Registrar

The disputed domain name <davepelz.org> (the “Domain Name”) is registered with Domain Contender, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 18, 2007. On May 21, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 23, 2007.

The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 16, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 19, 2007.

The Center appointed Tony Willoughby as the sole panelist in this matter on August 6, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The Complainant is a Texas Corporation, of which Mr. Dave Pelz is the founder, co-owner and CEO. Mr. Dave Pelz is well-known in the world of golf as a designer of golf clubs and an authority on putting and what is known in golf as the ‘short game’. Through the Complainant he provides instruction to golfers by way of books, videos and clinics.

The Complainant is the owner of United States service mark registrations featuring the name of Mr. Dave Pelz including registration number 2,692,479, DAVE PELZ GOLF (application filed on November 19, 2001), which was registered on March 4, 2003, in class 35 for various services covering the retail sale of golf-related goods and services. The Complainant operates a trading website at “www.pelzgolf.com”.

The Domain Name was registered on February 6, 2006. The Domain Name is connected to a directory website featuring links to a variety of trading sites including a selection of golf-related sites categorized under the heading, ‘Short Game’. Some of the linked sites relate to Mr. Dave Pelz, but most do not.

On January 9, 2007 the Complainant’s lawyers wrote a cease and desist letter to the registrant of the Domain Name, c/o the then registrar of the Domain Name, Domain Magic LLC. The letter was addressed thus, because the Whois record did not clearly identify the identity of the registrant. No reply was received to that letter.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is identical or confusingly similar to its registered service mark identified above.

The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant has conducted a trademark search and can find no trace of any registered rights in respect of the Domain Name.

The Complainant further contends that the Domain Name was registered and is being used in bad faith. The Complainant refers to the use being made of the Domain Name (see above) and contends that the Respondent registered the Domain Name to disrupt the business of the Complainant (paragraph 4(b)(iii) of the Policy) and is using the Domain Name for commercial gain to divert to its website Internet users trying to reach the Complainant’s website (paragraph 4(b)(iv) of the Policy).

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:

(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.

B. Identical or Confusingly Similar

The Complainant is the registered proprietor of United States Service Mark registration number 2,692,479, DAVE PELZ GOLF (application filed on November 19, 2001), which was registered on March 4, 2003, in class 35 for various services covering the retail sale of golf-related goods and services.

The Domain Name omits the generic word ‘golf’, but, absent the domain suffix, is otherwise identical to the Complainant’s service mark.

The Panel finds that the Domain Name is confusingly similar to the Complainant’s service mark.

C. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. It has conducted a trademark search, but can find no trace of any relevant registered rights in the name of the Respondent.

The Complainant points to the use which the Respondent is making of the Domain Name, namely to connect it to a directory site featuring, inter alia, links to golf-related sites having no connection with the Complainant or Mr. Dave Pelz, the Complainant’s founder, co-owner and CEO, the Complainant being engaged in the retail sale of golf-related goods and services under the “Dave Pelz” name. It is noteworthy that some of the links on the Respondent’s site are categorized under the heading, ‘Short Game’, which is an aspect of the game of golf, on which Mr. Dave Pelz is a noted authority.

The Complainant contends that the Respondent registered the Domain Name with the intention of exploiting Mr. Dave Pelz’s name for its own commercial gain by diverting Internet users from the Complainant’s site to its own and earning ‘click-per-view’ revenue from the links on the latter.

The Complainant has made out a convincing prima facie case and it is for the Respondent to answer that case. However, the Respondent has not responded to the Complainant’s allegations.

A business built on the unauthorized exploitation of another’s name and trade/service mark and involving the deception of Internet users cannot sensibly be regarded as ‘a bona fide offering of goods and services’ within the meaning of paragraph 4(c)(i) of the Policy. There is nothing before the Panel to suggest that the Respondent is commonly known by the Domain Name (paragraph 4(c)(ii) of the Policy); nor is there anything non-commercial or fair about the use, which the Respondent is making of the Domain Name (paragraph 4(c)(iii) of the Policy).

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

D. Registered and Used in Bad Faith

By precisely the same reasoning the Panel finds that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b(iv) of the Policy, namely using the Domain Name intentionally to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.

By virtue of the nature of the Domain Name, a substantial number of Internet users are likely to visit the Respondent’s website, believing it to be a website of the Complainant. Some may well appreciate when they reach the site that it is not a site of the Complainant, but by then the damage will have been done; the Respondent will have achieved a business opportunity, which it would not otherwise have obtained. Other visitors reaching the site and seeing the links under ‘Short Game’, while appreciating that the site is not the Complainant’s site, may nonetheless believe that this part of the site is authorized or sponsored by the Complainant. In the view of the Panel, business is likely to be (and to have been) unfairly diverted away from the Complainant by reason of the Respondent’s use of the Domain Name and this was the Respondent’s intention on registering the Domain Name.

The Panel finds that the Respondent registered and is using the Domain Name in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <davepelz.org>, be transferred to the Complainant.

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Tony Willoughby
Sole Panelist

Dated: August 20, 2007