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Laches in UDRP case (5)

Laches in UDRP case (5)

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Published by: LEX-57 the lex engine on Dec 21, 2010
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WIPO Arbitration and Mediation Center 
ADMINISTRATIVE PANEL DECISIONNational Football League v. Alan D. Bachand, Nathalie M. Bachand d/b/a superbowl-rooms.comCase No. D2009-01211. The Parties
Complainant is National Football League, New York, United States of America, represented by Debevoise &Plimpton, United States.Respondent is Alan D. Bachand, Nathalie M. Bachand d/b/a superbowl-rooms.com, United States appearing
 pro se
.
2. The Domain Names and Registrars
The disputed domain names <hotels4superbowl.com>, <hotel4superbowl.com>,<superbowlaccommodation.com>, <superbowlauction.com>, <superbowlauctions.com>,<superbowlcontests.com>, <super-bowl-final-four-tickets.com>,<superbowl-hotel-rooms.com>, <superbowl-hotels.com>, <superbowlluxuryhotels.com>, <superbowl-room.com>, <superbowlroom.com>, <superbowl-rooms.com>, <superbowlseat.com>, <superbowlshop.com>, <superbowlsites.com>,<superbowlvipparties.com>, <superbowl56.com>, <superbowl57.com>, <superbowl58.com>,<superbowl59.com>, <superbowl60.com>, <superbowl61.com>, <superbowl69.com> are registered withMelbourne IT Ltd.The disputed domain names <superbowlhotel.net> and <superbowlhotelroom.com> are registered with,GoDaddy.com, Inc. The disputed domain names are sometimes referred to herein as the “Domain Names”.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 29, 2009.On January 30, 2009 and February 4, 2009, the Center transmitted by e-mail to Melbourne IT Ltd andGoDaddy.com, Inc. a request for registrar verification in connection with the Domain Names. On February 3,2009 and February 4, 2009, Melbourne IT Ltd and GoDaddy.com, Inc. respectively transmitted by e-mail tothe Center its verification response confirming that Respondent is listed as the registrant and providing thecontact details.In response to the e-mail sent by the Center concerning the word limit, registrant identity and mutual jurisdiction, Complainant filed an amended Complaint on February 11, 2009. The Center verified that theamended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute ResolutionPolicy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”),
 
and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “SupplementalRules”).In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of theComplaint, and the proceedings commenced on February 17, 2009. In accordance with the Rules,paragraph 5(a), the due date for Response was March 9, 2009. Respondent requested to extend theResponse due date on March 6, 2009. Accordingly, the Response due date was exceptionally extended toMarch 29, 2009. The Response was filed with the Center on March 27, 2009.The Center appointed Robert A. Badgley as the sole panelist in this matter on April 7, 2009. The Panel findsthat 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
Complainant National Football League (“NFL”) is an unincorporated association of thirty-two member clubs,each of which owns and operates a professional American football team. Complainant's description of itself,and its activities and renown, are not disputed by Respondent, and are plausible and supported in therecord. A summary of Complainant's undisputed activities, trademarks, and fame follows.For several decades the NFL and its member clubs have provided entertainment to sports fans worldwide inthe form of professional American football games. NFL football is, and for many years has been, anextremely popular spectator sport in the United States. The NFL has televised live broadcasts of its footballgames on American television since 1958. NFL games are watched by millions of American viewers eachweek and millions more around the world.The NFL brand of professional football, and the events and exhibitions conducted or sponsored by the NFL,are enormously popular with both sports fans and the general public. The NFL's advertising, promotionaland marketing efforts have resulted in widespread public acceptance and recognition for its brand of professional football and associated events and exhibitions.The NFL's championship game is known as the “Super Bowl”. Complainant is the owner of various UnitedStates trademark registrations for the mark SUPER BOWL, including one registration dating back to 1969.Complainant has also registered the mark SUPER BOWL in some 50 other jurisdictions.The SUPER BOWL game is among the highest-rated television programs in the United States, and isusually the single most-watched television program in any given year. In addition, since the first SUPERBOWL game in 1967, the game and related festivities have attracted large crowds of fans and tourists. Theattendance for SUPER BOWL XLII, for instance, was 71,101. Thousands more visit the SUPER BOWL hostcity to attend events surrounding the game, including parties and other celebrations, even if they do nothave a ticket to the game itself.Complainant's advertising, promotional and marketing efforts in connection with the SUPER BOWL gamehave resulted in widespread recognition by the public as identifying Complainant and its sportsentertainment services.Complainant's official website for the SUPER BOWL game is located at <superbowl.com>. This domainname was registered by Complainant in 1995. In addition to providing extensive information about theSUPER BOWL game, the website also provides information about official related activities and eventsponsors.Complainant controls the distribution of all SUPER BOWL game tickets. Complainant operates NFL ONLOCATION, an official service that provides SUPER BOWL packages. Groups can choose from a number of packages, which can include tickets, accommodations, and exclusive game-day hospitality.Complainant alleges, and Respondent does not dispute, that Respondent Alan Bachand, operates abusiness under the name “Superbowl-Rooms.com”. With respect to some of the Domain Names at issue,
 
Respondent is listed in the WhoIs database under the name of his wife, “Nathalie Bachand”. Complainantalleges that, despite the initial registration of certain of the Domain Names in the name of Respondent'swife, the registration and use of those Domain Names has been on behalf of Respondent himself under principles of agency. Complainant does not dispute this characterization.Respondent registered the Domain Names at various times between March 2004 and May 2008. It isalleged, and undisputed, that an Internet user who enters any of the Domain Names into a browser lookingfor the official SUPER BOWL website or a website affiliated with the NFL will arrive at one of Respondent'ssites.Of the 26 Domain Names, 19 resolve to exactly the same website located at “www.superbowl-rooms.com”.The home page for that site provides Internet users with the opportunity to purchase accommodations for SUPER BOWL XLIII in Tampa, Florida. The site prominently displays Complainant's official SUPER BOWLlogo.The “SUPERBOWL” link on the left-hand menu bar of Respondent's “www.superbowl-rooms.com” homepage takes a user to a separate page that highlights the offering for sale of hotel rooms and other accommodations and related packages (some of which included tickets) for SUPER BOWL XLIII. Accordingto Complainant, this page makes an unauthorized commercial use not only of the official SUPER BOWLlogo, but also of the logos or helmet designs of various NFL member clubs.Respondent's home page also contains a link entitled “SUPERBOWL 43 PARTIES”, which takes a user toRespondent's website located at “www.superbowlvipparties.com”, which sells tickets to parties taking placeduring the days surrounding the SUPER BOWL game. The site also features the SUPER BOWL logo andmember club helmet designs.According to Complainant, the “www.superbowl-rooms.com” home page also makes an unauthorizedcommercial use of the SUPER BOWL mark for purposes in addition to offering accommodations for theSUPER BOWL game. The site also offers “hotel rooms, apartments, motels, condos, private houses, lodgingand hospitality” for numerous other sporting events such as the Olympics, the NCAA Final Four basketballtournament, the Masters golf tournament, the Ryder Cup golf tournament, the Daytona 500 automobile race,and other sporting events.The Domain Names, <superbowlluxuryhotels.com>, <superbowlhotelroom.com>, and <superbowlhotel.net>,all resolve to sites similar to the “www.superbowl-rooms.com” website inasmuch as they offer for sale hotelrooms for the SUPER BOWL game. All three sites also display the official SUPER BOWL logo, and all threecontain hyperlinks to Respondent's main site at “www.superbowl-rooms.com”.The Domain Name, <superbowlcontests.com>, provides links to various SUPER BOWL-related contests,including contests to win tickets and hotel stays for the SUPER BOWL game. Several of the contestsadvertised (those with NFL or SUPER BOWL logos) are official NFL contests. An advertisement box on theleft side of the home page also invites users to go to <superbowl-rooms.com> in order to book hotel rooms.The Domain Name, <super-bowl-final-four-tickets.com>, resolves to a website offering to sell tickets not onlyfor the SUPER BOWL game, but also for other professional sports leagues (such as the National BasketballAssociation, National Hockey League, and Major League Baseball), musical concerts (such as Rod Stewartand Britney Spears), boxing matches, and theater. The site also prominently features one of the previousofficial SUPER BOWL logos along with the NFL Shield logo.The Domain Name, <superbowlauction.com>, currently does not resolve to any website and appears never to have resolved to any website.Complainant also alleges, and attaches in support a printout from Respondent's website, that Respondenthas publicly offered to sell all 26 of the Domain Names including Respondent's apparent main DomainName, <superbowl-rooms.com> at the “www.superbowl-rooms.com” website.On October 11, 2005, Complainant's counsel wrote a letter to Respondent objecting to his use of the<superbowl-rooms.com> Domain Name. Complainant alleges that, at the time, it was unaware that

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