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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Rollerblade, Inc. v. Chris McCrady

Case No. D2000-0429

 

1. The Parties

The Complainant in this dispute is:

Rollerblade, Inc.
One Sportsystem Plaza
Bordentown, New Jersey 08505-9360
Represented by:

Jenifer deWolf Paine, Esq.
Proskauer Rose, LLP
1585 Broadway
New York, New York 10036

The Respondent is:

Chris McCrady
1500 Ave. O
#4
Plano, Texas 75074

 

2. The Domain Name and Registrar

The disputed domain name is <ROLLERBLADE.NET>. The Registrar is Network Solutions, Inc (NSI) of Herndon, Virginia.

 

3. Procedural History

This dispute is to be decided under the Internet Corporation for Assigned Names and Numbers’ Uniform Domain Name Dispute Resolution Policy and Rules as approved on October 24, 1999 (ICANN, the Policy and the Rules) and the Supplemental Rules adopted by the World Intellectual Property Organization Arbitration and Mediation Center (the Center and the Supplemental Rules).

This Complaint was filed on May 12, 2000. On May 19, 2000 the Center requested that the Registrar report back on who the registrant was for the disputed domain name <ROLLERBLADE.NET>. On May 24, NSI reported back that the registrant was the Respondent in this Proceeding:

Chris McCrady
1500 Ave. O
#4
Plano, Texas 75074

On May 30, 2000 the Center notified the Respondent by e-mail and hard copy that the Complaint had been filed and this Proceeding officially began. Respondent’s Response was received by the Center on June 14, 2000. On June 15, 2000 this Panel submitted a Declaration of Impartiality and Independence, and this Panel was nominated on June 16, 2000.

This Panel finds the Center has followed the Policy and the Rules in administering this Proceeding.

This Decision is due by June 29, 2000

 

4. Factual Background

Rollerblade, Inc., the Complainant, is a Delaware corporation with headquarters in New Jersey that makes in-line skates and related products. Complainant has produced a list (Complaint pp.5-6) of some twenty (20) United States trademarks going back to 1985, all including some form of the word "Rollerblade." Complainant has registered the domain name "<Rollerblade.com>." Respondent, Chris McCrady, by his own admission registered the domain name <ROLLERBLADE.NET> subsequent to Complainant’s registering "<Rollerblade.com>". Respondent is using the disputed domain name to show pictures of family members roller skating. In this Proceeding, the Complainant contests Respondent’s right to use the domain name <ROLLERBLADE.NET>.

 

5. The Parties’ Contentions

Complainant’s Contentions:

-- Complainant was a pioneer maker of in-line skates, and for almost twenty (20) years has made skates and related products using the "Rollerblade" trademark.

-- Complainant is the owner of many United States federal trademarks and service marks using the word "Rollerblade" (Complaint pp.5-6).

-- The "Rollerblade" trademarks and service marks are famous and have acquired substantial good will.

-- Respondent’s domain name <ROLLERBLADE.NET> is identical to Complainant’s trademark.

-- Respondent has no legitimate rights or interests in the domain name.

-- Respondent has registered the disputed domain name in bad faith because Respondent is intentionally misleading and diverting Complainant’s potential customers.

-- Complainant requests that the disputed domain name be turned over to Complainant.

Respondent’s Contentions:

It is difficult to characterize Respondent’s contentions in brief phrases and, as the Response is not long, this Panel has decided to cite it in full. Respondent responded as follows:

"I am unwilling to arbitrate the Domain name < ROLLERBLADE.NET> which is solely owned by me. Rollerblade the company has made no effort to acquire the <ROLLERBLADE.NET> from me or offer any restitution and has done nothing but harass and threaten me. I bought the domain name for my nephew’s birthday so he and his friends could have a "neat" email address and a website to show off their "rollerblading" pictures. The site is in no way competing with ROLLERBLADE.COM and nothing is being sold or advertised . Rollerblade claims they have intellectual property involved with ROLLERBLADE.NET yet they did nothing to protect it. There was almost 4 years between the time Rollerblade the company reserved ROLLERBLADE.COM and when I reserved ROLLERBLADE.NET. ROLLERBLADE.NET cannot be considered intellectual property as demonstrated by the actions of Rollerblade the company.

If Rollerblade the company would have approached me with the intent of coming to some kind of mutual agreement I would have let them have the site in exchange for an item out of their product line and a tee-shirt for my nephew. Instead, the first communication I got from Rollerblade the company was a threat that I was going to have to pay a bunch of money for their legal fees to sue me for reserving the name. I now have no intentions of relinquishing my domain name ROLLERBLADE.NET."

 

6. Discussion and Findings

In order for Complainant to prevail and have the disputed domain name <ROLLERBLADE.NET> transferred to it, Complainant must prove the following (the Policy, para 4(a)(i-iii):

-- the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

-- the Respondent has no rights or legitimate interests in respect of the domain name; and

-- the domain name was registered and is being used in bad faith.

Identical or Confusingly Similar

There can be no question that Respondent’s domain name <ROLLERBLADE.NET> is identical to Complainant’s trademark "Rollerblade", and this Panel so finds. It is already well established that the specific top level of the domain name such as "net" or "com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar. (see for example Case No. D2000-0135)

Legitimate Rights or Interests

Respondent states he registered the domain name <ROLLERBLADE.NET> "for my nephew’s birthday so he and his friends could have a "neat" email address and a website to show off their "rollerblading" pictures (Response, p.1).

This Panel does not see the slightest indication of a legitimate trademark interest in this Response that would allow Respondent to claim a legitimate right or interest in this disputed domain name. Just because Respondent is a patron of Complainant’s products and is enthusiastic about them is not a legitimate right or interest under the Policy 4 (a)(ii) that would allow Respondent to register a domain name using Complainant’s trademark.

This Panel finds Respondent has no legitimate right or interest in the disputed domain name <ROLLERBLADE.NET>.

Registered and Used in Bad Faith

Complainant contends that it owns United States federal trademarks with "Rollerblade" variations going back to 1985 (Complaint pp. 5-6). This Panel would have liked to see attached to the Complaint a few copies of the actual registrations of these trademarks rather than just a listing as Complainant has done. Nonetheless, Respondent does not contest Complainant’s ownership of these trademarks, and, on the balance of the evidence, this Panel accepts Complainant’s contention as true that it is the owner of these trademarks.

This Panel also agrees that Complainant’s trademark is famous throughout the United States and in many parts of the world. Respondent certainly knew about Complainant’s trademark rights when Respondent registered the disputed domain name <ROLLERBLADE.NET>.

This Panel finds that Respondent’s certain constructive and actual knowledge of Complainant’s trademark rights prior to registering the disputed domain name to be strong evidence of registration and use of the domain in bad faith (other WIPO Panels also have so found: see for example Case No.D2000-0018) . The Policy 4(b) allows this Panel to look at all the circumstances of the Case at hand, not just the specifically enumerated instances of bad faith in the Policy.

Moreover, at one point in his Response (p.1), Respondent states: "Rollerblade the company has made no effort to acquire the <ROLLERBLADE.NET> from me or offer any restitution…….If Rollerblade the company would have approached me with the intent of coming to some kind of mutual agreement I would have let them have the site in exchange for an item of their product line and a tee-shirt for my nephew. Instead, the first communication I got from Rollerblade the company was a threat that I was going to have to pay a bunch of money for their legal fees to sue me for reserving the name. I now have no intentions of relinquishing my domain name ROLLERBLADE.NET."

This Panel surmises that Respondent is in bad faith because, not only did he register the disputed domain name <ROLLERBLADE.NET> with constructive and actual knowledge of Complainant’s prior trademark rights, but Respondent also seems determined to exploit his nuisance value with his overtures to be bought off (the Policy 4(b)(i).

This Panel finds Respondent has registered and is using the disputed domain name <ROLLERBLADE.NET> in bad faith.

 

7. Decision

This decision is based on the Panel’s findings that Respondent’s disputed domain name <ROLLERBLADE.NET> is identical to Complainant’s trademark, that Respondent has no legitimate rights or interests in the disputed domain name, and that Respondent has registered and is using the domain name in bad faith. Therefore, pursuant to ICANN Policy para 4(i) and Rule 15, this Panel orders that the disputed domain name <ROLLERBLADE.NET> be turned over to Complainant.

 


 

Dennis A. Foster
Sole Panelist

Dated: June 25, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0429.html

 

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