Islj 2009 3-4 - TMC Asser Instituut

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present for an offering of goods or services to be bona fide for the purposes of paragraph 4(c)(i) of the Policy: i the respondent must actually be offering the complainant’s goods or services at issue; ii the respondent must use the site to sell only the trade marked products; otherwise, the respondent could be using the trade mark to bait other internet users and then switch them to other goods; iii the web site must accurately disclose the respondent’s relationship with trade mark owner; iv the respondent must not be allowed to corner the market in domain names that reflect that mark. In the present case it is evident from reviewing the content of the Respondent’s websites that the second of the above conditions is not met as the websites are being used to sell tickets to matches organized by other clubs and tickets to various other concerts and events. The third condition is also not met as the Disputed Domain Names improperly suggest that the reflected websites are official websites authorized to sell tickets. The consistent use of the word “official” throughout the Respondent’s websites is further likely to mislead Internet users, causing them to mistakenly believe that they are purchasing official tickets. There is evidence that the Respondent has, in circumstances similar to this case, registered a series of domain names that wholly incorporate the registered trade marks of well known European football clubs and major sporting events. These include: Juventus, Wimbledon, S.S. Lazio, Real Madrid, Champions League, Sevilla Football Club, Six Nations, UEFA Cup, A.S Roma, and The Olympics. Each of these Disputed Domain Names incorporates the words “official” and “tickets”, and each appears to be designed to mislead Internet users into believing that the websites to which the Domain Names resolve are operated or authorized by the owners of the relevant trade mark rights. The websites to which these Domain Names resolve are similarly used to sell unofficial tickets to sporting events and concerts and would appear to form part of a scheme by the Respondent designed to promote the Respondents’ online ticket store. The Panel finds that such a pattern of registration of domain names for the purposes of misleading Internet users in this way is not consistent with the bona fide offering of goods or services under paragraph 4(c)(i) of the Policy. Paragraph 4(c)(ii) of the Policy is not satisfied as there is nothing to suggest that the Respondent might be commonly known by the Disputed Domain Names. It is instructive in this regard that the Respondent only registered the Disputed Domain Names in October 2007, when the Complainants trade marks were already extremely well known. Neither is there any evidence that the Respondent has been making a non-commercial or fair use of the Disputed Domain Names, without intent for commercial gain. The Respondent has not filed a Response to the Complaint, none of the grounds set out in paragraph 4(c) of the Policy are made out based on the evidence put before the Panel and all the circumstances point to the Respondent using the Disputed Domain Names to channel Internet traffic to its website where it sells unauthorized tickets to the Complainants’ football matches. In all the circumstances the Panel therefore finds the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names and as such the Complainants have satisfied paragraph 4(a)(ii) of the Policy. (iii) Registered and Used in Bad Faith The Policy requires a complainant to prove both registration and use in bad faith. Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and used of a domain name in bad faith. Those circumstances are: i circumstances indicating that the respondent has registered or acquired the domain name primarily for purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or ii the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or iii the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or iv by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on respondent’s website or location. The Panel accepts the Complainants’ contention that the Respondent is unauthorized to sell tickets to their football matches and is the Complainants’ competitor in the context of ticket sales. As the Panel has already noted, the Respondent has engaged in a pattern of registration of domain names incorporating trade marks in which the Respondent has no rights, combined with the generic words “official” and “tickets”. The Panel accepts the Complainants’ submission that, as in this case, these other domain names have been registered and used by the Respondent as a part of a scheme designed to promote the Respondent’s online ticket store, by misleading Internet users seeking to purchase the official tickets of the relevant football club or sporting organizations. For these reasons, the Panel finds that this pattern of conduct is indicative of bad faith on the part of the Respondent. For the purposes of paragraph 4(b)(iv) of the Policy the Complainants contend that the Respondent has used the Disputed Domain Names in an attempt to attract, for commercial gain, Internet users to the Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation or endorsement. As noted, the Complainants have developed substantial reputations in their respective trade marks. The Panel cannot objectively reason why the Respondent would use the Complainants’ respective trade marks in the Disputed Domain Names in addition to the terms “official” and “tickets” for any other reason save as to create a likelihood of confusion amongst Internet users with the Complainants’ trade marks. The fact that the Disputed Domain Names resolve to web sites that contain similar colors, fonts, images and logos to those of the Complainants’ registered trade marks and contain the term “official” throughout while seeking to generate revenue through the sale of tickets to the Complainants football matches is likely to cause further confusion amongst Internet users with the Complainants’ trade marks. In all the circumstances it appears to the Panel that the Disputed Domain Names and the websites to which they resolve were intended to confuse people as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. The Panel finds that the Complainant has satisfied the requirements of paragraph 4(b)(iv) of the Policy and that accordingly the Disputed Domain Names were registered and used in bad faith under paragraph 4(a)(iii) of the Policy. The Decision of the Panel For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Names be transferred to the Complainants’ respectively on the following basis: 1. to Fulham Football Club (1987) Limited; 2. to The Liverpool Football Club And Athletic Grounds Limited; 3. to Manchester United Limited; 138 2009/3-4 O P I N I O N
4. to Tottenham Hostpur Public Limited; 5. to West Ham United Football Club PLC. Alistair Payne Sole Panelist Dated: May 12, 2009” Concluding Remarks This case is a classic one of ‘cyber squatting’ and the misuse of valuable trademarks as part of domain names registered and used for commercial gains by a third party with no legal entitlement or authorization to do so. The effect of such conduct is to cause confusion in the market place and mislead consumers seeking information on line of the services and products of the legitimate owners of the marks concerned. The WIPO Arbitration and Mediation Center, as an accredited organization under the Uniform Domain Name Dispute Resolution Policy, offers a valuable service in resolving such disputes - not only in the sporting field but also in other business sectors -effectively, quickly and inexpensively since the introduction of this form of dispute resolution ten years ago. For more information, log onto: www.wipo.int. Two New Sports Added To the Olympics Introductory At the meeting of the Executive Board of the International Olympic Committee (IOC) in Berlin on 13 August, 2009, two new sports were proposed for inclusion in the Olympic programme with effect from 2016 - the Host City of that year’s Summer Olympics is still to be decided and announced. They are: golf and rugby-sevens; and were chosen from a shortlist of seven sports - already demonstration sports - competing for the honour. The other five contenders were: baseball; karate; softball; squash and roller sports. The proposal to include golf and rugby-sevens in the Olympic programme will be submitted to the full IOC Session for a final decision at its meeting in Copenhagen on 3 - 5 October, 2009. Each of the seven sports gave presentations to the Executive Board at its last meeting in June, 2009; and an extensive evaluation was conducted by the IOC Olympic Programme Commission of the potential added value to the Games from each of the seven sports on the shortlist. Background The Olympic Games programme consists of 33 sports, 52 disciplines and nearly 400 events. For example, wrestling is a Summer Olympic sport, comprising two disciplines: Greco-Roman and Freestyle. It is further broken down into fourteen events for men and four events for women. These events are delineated by weight classes. The Summer Olympics programme currently includes 26 sports; whereas the Winter Olympics programme features only 7 sports. Athletics, swimming, fencing, and artistic gymnastics are the only summer sports that have never been absent from the Olympic program. Cross-country skiing, figure skating, ice hockey, Nordic combined, ski jumping, and speed skating have been featured at every Winter Olympics program since it began in 1924. Current Olympic sports, like badminton, basketball, and volleyball, first appeared on the programme as demonstration sports, and were later promoted to full Olympic sports. Some sports that were featured in earlier Games were later dropped from the programme. All the Olympic sports are governed by the International Federations (IFs) recognized by the IOC as the global supervisors of those sports. There are 35 IFs represented at the IOC. There are also a number of sports recognized by the IOC that are not included in the Olympic programme. These sports are not considered Olympic sports, but they can be promoted to this status during a programme revision that occurs at the first IOC Session following a celebration of the Olympic Games. During such revisions, sports can be excluded or included in the programme, based on a twothirds majority vote of the members of the IOC. There are recognized sports that have never been included in an Olympic programme in any form. Some of these include tug of war, chess and surfing. In October and November, 2004, the IOC established an Olympic Programme Commission, which was charged with reviewing the sports in the Olympic programme, as well as all non-Olympic recognized sports. The goal was to apply a systematic approach to establishing the Olympic programme for each celebration of the Olympic Games. The Commission established seven criteria for determining whether a sport should be included in the Olympic programme. These criteria are: • history and tradition of the sport; • universality; • popularity of the sport; • image; • athletes’ health; • development of the International Federation that governs the sport; and • costs of holding the sport. In addition, there is a requirement that the sports in the programme must adhere to the World Anti Doping Agency Code. Five recognized sports emerged as candidates for inclusion at the London 2012 Summer Olympics: golf, karate, rugby, roller sports and squash. These sports were reviewed by the IOC Executive Board and then referred to the IOC Session in Singapore in July 2005. Of the five sports recommended for inclusion, only two were selected as finalists: karate and squash. Neither sport attained the required twothirds vote of the IOC members and, therefore, not promoted to the Olympic programme. The 2002 IOC Session, limited the Summer Games programme to a maximum of 28 sports; 301 events; and 10,500 athletes. At the 2005 IOC Session, the first major programme revision occurred, resulting in the exclusion of baseball and softball from the official programme of the 2012 London Games. Since there was no agreement in promoting two other sports, the 2012 programme will feature only 26 sports. Comments As mentioned above, in deciding which sports qualify for inclusion in the Olympic programme, the IOC must take into account the value that the sports add to the Olympic Games. But what is meant by ‘value’? Is it sporting value? Or is it commercial value? Or is it both? I suspect that now that the Olympics are a multi million dollar money spinner for the IOC, the emphasis is more on what commercial value the sport concerned can bring to the Olympics in general and the IOC in particular! To continue the financial theme: it is interesting to note that, when Avery Brundage retired as President in 1972, the IOC had US$2 million in assets; eight years later, the IOC coffers had swelled to US$45 million, largely due to a deliberate policy by the IOC of attracting corporate sponsorship and also the sale of television rights. This upward trend in the financial fortunes of the IOC has continued, not least under former IOC President, Juan Antonio Samaranch, with his avowed intent to make the IOC financially independent. Also, the criteria mentioned above, generally speaking, are rather vague and again cost comes into the equation. It would seem that it is a case of minimum financial effort for maximum financial return. Nice if you can get it! As Dick Pound has recently remarked, the IOC has been known over the years to come up with some strange deci- O P I N I O N 2009/3-4 139
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2009/3-4 EU Sports Policy FIFA Tran
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EDITORIAL 2 ARTICLES The Future EU
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The Future EU Sports Policy: Hollow
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Community a new dimension, such as
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Sports Ministers Conference, The Ha
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and 15) that the provisions of Comm
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The Case against the Applicability
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not fall within the wording “tran
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4 See also in support of this argum
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This is not an unrealistic career p
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cerned, the specificity of sport, a
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compensated for the income it could
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A more basic question is what weigh
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Article 17 (6) For a player over 23
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live sports rights in many other co
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equired coverage of 90% is not met.
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letes in any form, even including a
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Article 95 of the CHL Rules governs
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The RFL may declare that a player w
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ices acquired by the clubs in the r
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competition (thereby enhancing the
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Each country of the Kingdom has all
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2.2.The objectionable NAOC intentio
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Sub Rule 29.5 It reads “The area
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To secure the appreciation of CAS i
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5.3 Recognition by the internationa
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however it will all come to the lev
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ICAS International Council for Arbi
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or serious bodily harm. Such prepar
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cumstances arise, a measure can be
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to the amount of regulations in the
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4.1. The relationship between sport
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5. Conclusion In this article I hav
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ing a player. In order to create an
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9 The ‘reserve clause’ gave clu
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In this research, the focus will be
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sports agent will not bargain at ar
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have a dominant position. Thereafte
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3.5.2. Regulations of the KNVB The
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Islj 2009 3-4 - TMC Asser Instituut

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