This case originally involved the application of the Federal Trademark Dilution Act (“FTDA”) to the Internet. See Federal Trademark Dilution Act of 1995, Pub.L. No. 104-98, 109 Stat. 985 (codified at 15 U.S.C. §§ 1125, 1127 (Supp.1996)). While the case was pending on appeal, however, the Anticybersquatting Consumer Protection Act (“ACPA”), Pub.L. No. 106-113 (1999), see H.R.Rep. No. 106-479 (Nov. 18, 1999), was passed and signed into law. That new law applies to this case.
Plaintiff-Counter-Defendanh-AppellanN Cross-Appellee Sporty’s Farm L.L.C. (“Sporty’s Farm”) appeals from a judgment, following a bench trial, of the United States District Court for the District of Connecticut (Alfred V. Covello, Chief Judge) dated March 13, 1998. Defendant-Third-Party-Plaintiff-Counter-Claimant-Appellee-Cross-Appellant Sportsman’s Market, Inc. (“Sportsman’s”) cross-appeals from the same judgment.
The district court held: (1) that the Sportsman’s trademark (“sporty’s ”) was a famous mark entitled to protection under the FTDA; (2) that Sporty’s Farm and its parent company, Third-Party-Defendant-Appellee Omega Engineering, Inc. (“Omega”), diluted the sporty's mark by using the Internet domain name “sportys.com” to sell Christmas trees and by preventing Sportsman’s from using its trademark as a domain name; (3) that applying the FTDA to Sporty’s Farm through an injunction requiring it to relinquish sportys.com was both equitable and not a retroactive application of the statute; (4) that Sportsman’s was limited to injunctive relief since the conduct of Sporty’s Farm and Omega did not constitute a willful intent to dilute under the FTDA; and (5) that Sporty’s Farm and Omega did not violate the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. Ann. §§ 42-110a to 42-llOq (West 1992 & Supp.1999). We apply the new anticybersquatting law and affirm the judgment in all respects, but, given the new law, on different grounds from those relied upon by the district court.
BACKGROUND
I
Although the Internet is on its way to becoming a familiar aspect in our daily lives, it is well to begin with a brief explanation of how it works. The Internet is a network of computers that allows a user to gain access to information stored on any other computer on the network. Information on the Internet is lodged on files called web pages, which can include printed matter, sound, pictures, and links to other web pages. An Internet user can move from, one page to another with just the click of a mouse.
Web pages are designated by an address called a domain name. A domain name consists of two parts: a top level domain and a secondary level domain. The top level domain is the domain name’s suffix. Currently, the Internet is divided primarily into six top level domains: (1) .edu for educational institutions; (2) ,org for nongovernmental and non-commercial organizations; (3) .gov for governmental entities; (4) .net for networks; (5) .com for commercial users, and (6) a nation-specific domain, which is .us in the United States. The secondary level domain is the remainder of the address, and can consist of combinations of letters, numbers, and some typographical symbols.
Over the last few years, the commercial side of the Internet has grown rapidly. Web pages are now used by companies to provide information about their products in a much more detailed fashion than can be done through a standard advertisement. Moreover, many consumers and businesses now order goods and services directly from company web pages. Given that Internet sales are paperless and have lower transaction costs than other types of retail sales, the commercial potential of this technology is vast.
For consumers to buy things or gather information on the Internet, they need an easy way to find particular companies or brand names. The most common method of locating an unknown domain name is simply to type in the company name or logo with the suffix .com.
Until recently, domain names with the .com top level domain could only be obtained from Network Solutions, Inc. (“NSI”). Now other registrars may also assign them. But all these registrars grant such names primarily on a first-come, first-served basis upon payment of a small registration fee. They do not generally inquire into whether a given domain name request matches a trademark held by someone other than the person requesting the name. See id.
Due to the lack of any regulatory control over domain name registration, an Internet phenomenon known as “cybersquat-ting” has become increasingly common in recent years.
II
Sportsman’s is a mail order catalog company that is quite well-known among pilots and aviation enthusiasts for selling products tailored to their needs. In recent years, Sportsman’s has expanded its catalog business well beyond the aviation market into that for tools and home accessories. The company annually distributes approximately 18 million catalogs nationwide, and has yearly revenues of about $50 million. Aviation sales account for about
In the 1960s, Sportsman’s began using the logo “sporty ” to identify its catalogs and products. In 1985, Sportsman’s registered the trademark sporty’s with the United States Patent and Trademark Office. Since then, Sportsman’s has complied with all statutory requirements to preserve its interest in the sporty’s mark. Sporty’s appears on the cover of all Sportsman’s catalogs; Sportsman’s international toll free number is 1-800-4sportys; and one of Sportsman’s domestic toll free phone numbers is 1-800-Sportys. Sportsman’s spends about $10 million per year advertising its sporty’s logo.
Omega is a mail order catalog company that sells mainly scientific process measurement and control instruments. In late 1994 or early 1995, the owners of Omega, Arthur and Betty Hollander, decided to enter the aviation catalog business and, for that purpose, formed a wholly-owned subsidiary called Pilot’s Depot, LLC (“Pilot’s Depot”). Shortly thereafter, Omega registered the domain name sportys.com with NSI. Arthur Hollander was a pilot who received Sportsman’s catalogs and thus was aware of the sporty’s trademark.
In January 1996, nine months after registering sportys.com, Omega formed another wholly-owned subsidiary called Sporty’s Farm and sold it the rights to sportys.com for $16,200. Sporty’s Farm grows and sells Christmas trees, and soon began advertising its Christmas trees on a sportys.com web page. When asked how the name Sporty’s Farm was selected for Omega’s Christmas tree subsidiary, Ralph 5. Michael, the CEO of Omega and manager of Sporty’s Farm, explained, as summarized by the district court, that
in his own mind and among his family, he always thought of and referred to the Pennsylvania land where Sporty’s Farm now operates as Spotty’s farm. The origin of the name ... derived from a childhood memory he had of his uncle’s farm in upstate New York. As a youngster, Michael owned a dog named Spotty. Because the dog strayed, his uncle took him to his upstate farm. Michael thereafter referred to the farm as Spotty’s farm. The name Sporty’s Farm was ... a subsequent derivation.
Joint Appendix (“JA”) at 277 (emphasis added). There is, however, no evidence in the record that Hollander was considering starting a Christmas tree business when he registered sportys.com or that Hollander was ever acquainted with Michael’s dog Spotty.
In March 1996, Sportsman’s discovered that Omega had registered sportys.com as a domain name. Thereafter, and before Sportsman’s could take any action, Sporty’s Farm brought this declaratory action seeking the right to continue its use of sportys.com. Sportsman’s counterclaimed and also sued Omega as a third-party defendant for, inter alia, (1) trademark infringement, (2) trademark dilution pursuant to the FTDA, and (3) unfair competition under state law. Both sides sought injunctive relief to force the other to relinquish its claims to sportys.com. While this litigation was ongoing, Sportsman’s used “sportys-catalogs.com” as its primary domain name.
After a bench trial, the court rejected Sportsman’s trademark infringement claim and all related claims that are based on a “likelihood of [consumer] confusion” since “the parties operate wholly unrelated businesses [and therefore, confusion in the marketplace is not likely to develop.”
Finally, the district court ruled that, although Sporty’s Farm had violated the FTDA, its conduct did not constitute a violation of CUTPA. This conclusion was based on the district court’s finding that Sportsman’s had failed to show by a preponderance of the evidence (1) that Sporty’s Farm and Omega’s “conduct was immoral, unethical, oppressive, or unscrupulous,” and (2) that Sportsman’s “suffered a substantial injury sufficient to establish a CUTPA claim.” Id at 291-92.
The district court then issued an injunction forcing Sporty’s Farm to relinquish all rights to sportys.com. And Sportsman’s subsequently acquired the domain name. Both Sporty’s Farm and Sportsman’s appeal.
Ill
As we noted above, while this appeal was pending, Congress passed the ACPA. That law was passed “to protect consumers and American businesses, to promote the growth of online commerce, and to provide clarity in the law for trademark owners by prohibiting the bad-faith and abusive registration of distinctive marks as Internet domain names with the intent to profit from the goodwill associated with such marks — a practice commonly referred to as ‘cybersquatting’.” S.Rep. No. 106-140, at 4. In particular, Congress viewed the legal remedies available for victims of cybersquatting before the passage of the ACPA as “expensive and uncertain.” H.R.Rep. No. 106^412, at 6. The Senate made clear its view on this point:
While the [FTDA] has been useful in pursuing cybersquatters, cybersquat-ters have become increasingly sophisticated as the case law has developed and now take the necessary precautions to insulate themselves from liability. For example, many cybersquatters are now careful to no longer offer the domain name for sale in any manner that could implicate liability under existing trademark dilution case law. And, in cases of warehousing and trafficking in domain names, courts have sometimes declined to provide assistance to trademark holders, leaving them without adequate and effective judicial remedies. This uncertainty as to the trademark law’s application to the Internet has produced inconsistent judicial decisions and created extensive monitoring obligations, unnecessary legal costs, and uncertainty for consumers and trademark owners alike.
The new act accordingly amends the Trademark Act of 1946, creating a specific federal remedy for cybersquatting. New 15 U.S.C. § 1125(d)(1)(A) reads:
A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person—
(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and
(ii) registers, traffics in, or uses a domain name that—
(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; ...
The Act further provides that “a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark,” 15 U.S.C. § 1125(d)(1)(C), if the domain name was “registered before, on, or after the date of the enactment of this Act,” Pub.L. No. 106-113, § 3010.- It also provides that damages can be awarded for violations of the Act,
DISCUSSION
This ease has three distinct features that are worth noting before we proceed further. First, our opinion appears to be the first interpretation of the ACPA at the appellate level. Second, we are asked to undertake the interpretation of this new statute even though the district court made its ruling based on the FTDA. Third, the case before us presents a factual situation that, as far as we can tell, is rare if not unique: A Competitor X of Company Y has registered Y’s trademark as a domain name and then transferred that name to Subsidiary Z, which operates a business wholly unrelated to Y. These unusual features counsel that we decide no more than is absolutely necessary to resolve the case before us.
A. Application of the ACPA to this Case
The first issue before us is whether the ACPA governs this case. The district court based its holding on the FTDA since the ACPA had not been passed when it made its decision. Because the ACPA became law while this case was pending before us, we must decide how its passage affects this case. As a general rule, we apply the law that exists at the time of the appeal. See, e.g., Hamm v. City of Rock Hill,
But even if a new law controls, the question remains whether in such circumstances it is more appropriate for the appellate court to apply it directly or, in
B. “Distinctive” or “Famous”
Under the new Act, we must first determine whether sporty’s is a distinctive or famous mark and thus entitled to the ACPA’s protection. See 15 U.S.C. § 1125(d)(l)(A)(ii)(I), (II). The district court concluded that sporty’s is both distinctive and famous. We agree that sporty’s is a “distinctive” mark. As a result, and without casting any doubt on the district court’s holding in this respect, we need not, and hence do not, decide whether sporty’s is also a “famous” mark.
Distinctiveness refers to inherent qualities of a mark and is a completely different concept from fame. A mark may be distinctive before it has been used— when its fame is nonexistent. By the same token, even a famous mark may be so ordinary, or descriptive as to be notable for its lack of distinctiveness. See Nabisco, Inc. v. PF Brands, Inc.,
C. “Identical and Confusingly Similar”
The next question is whether domain name sportys.com is “identical or confusingly similar to” the sporty’s mark.
D. “Bad Faith Intent to Profit”
We next turn to the issue of whether Sporty’s Farm acted with a “bad faith intent to profit” from the mark sporty’s when it registered the domain name sportys.com. 15 U.S.C. § 1125(d)(l)(A)(i). The statute lists nine factors to assist courts in determining when a defendant has acted with a bad faith intent to profit from the use of a mark.
We hold that there is more than enough evidence in the record below of “bad faith intent to profit” on the part of Sporty’s Farm (as that term is defined in the statute), so that “no reasonable factfinder could return a verdict against” Sportsman’s. Norville v. Staten Island Univ. Hosp.,
The third factor, the prior use of the domain name in connection with the bona fide offering of any goods or services, also cuts against Sporty’s Farm since it did not use the site until after this litigation began, undermining its claim that the offering of Christmas trees on the site was in good faith. See id. § 1125(d)(l)(B)(i)(III). Further weighing in favor of a conclusion that Sporty’s Farm had the requisite statutory bad faith intent, as a matter of law, are the following: (1) Sporty’s Farm does not claim that its use of the domain name was “noncommercial” or a “fair 'use of the mark,” see id. § 1125(d)(l)(B)(i)(IV), (2) Omega sold the mark to Sporty’s Farm under suspicious circumstances, see Sporty’s Farm v. Sportsman’s Market, No. 96CV0756 (D.Conn. Mar. 13, 1998), reprinted in Joint Appendix at A277 (describing the circumstances of the transfer of sportys.com); 15 U.S.C. § 1125(d)(l)(B)(i)(VI), and, (3) as we discussed above, the sporty’s mark is undoubtedly distinctive, see id. § 1125(d)(1)(B)(i)(IX).
The most important grounds for our holding that Sporty’s Farm acted with a bad faith intent, however, are the unique circumstances of this case, which do not fit neatly into the specific factors enumerated by Congress but may nevertheless be considered under the statute. We know from the record and from the district court’s findings that Omega planned to enter into direct competition with Sportsman’s in the pilot and aviation consumer market. As recipients of Sportsman’s catalogs, Omega’s owners, the Hollanders, were fully aware that sporty’s was a very strong mark for consumers of those products. It cannot be doubted, as the court found below, that Omega registered sportys.com for the primary purpose of keeping Sportsman’s from using that domain name. Several months later, and after this lawsuit was filed, Omega created another company in an unrelated business that received the name Sporty’s Farm so that it could (1) use the sportys.com domain name in some commercial fashion, (2) keep the name away from Sportsman’s, and (3) protect itself in the event that Sportsman’s brought an infringement claim alleging that a “likelihood of confusion” had been created by Omega’s version of cybersquat-ting. Finally, the explanation given for Sporty’s Farm’s desire to use the domain name, based on the existence of the dog Spotty, is more amusing than credible. Given these facts and the district court’s grant of an equitable injunction under the FTDA, there is ample and overwhelming evidence that, as a matter of law, Sporty’s Farm’s acted with a “bad faith intent to profit” from the domain name sportys.com as those terms are used in the ACPA.
E. Remedy
Based on the foregoing, we hold that under § 1125(d)(1)(A), Sporty’s Farm violated Sportsman’s statutory rights by its use of the sportys.com domain name.
We must also determine, however, if Sportsman’s is entitled to damages either under the ACPA or pre-existing law. Under the ACPA, damages are unavailable to Sportsman’s since sportys.com was registered and used by Sporty’s Farm prior to the passage of the new law. See id. (stating that damages can be awarded for violations of the Act but that they are not “available with respect to the registration, trafficking, or use of a domain name that occurs before the date of the enactment of this Act.”).
But Sportsman’s might, nonetheless, be eligible for damages under the FTDA since there is nothing in the ACPA that precludes, in cybersquatting cases, the award of damages under any pre-exist-ing law. See 15 U.S.C § 1125(d)(3) (providing that any remedies created by the new act are “in addition to any other civil action or remedy otherwise applicable”). Under the FTDA, “[t]he owner of the famous mark shall be entitled only to injunc-tive relief unless the person against whom the injunction is sought willfully intended to trade on the owner’s reputation or to cause dilution of the famous mark.” Id. § 1125(c)(2) (emphasis added). Accordingly, where -willful intent to dilute is demonstrated, the owner of the famous mark is— subject to the principles of equity—entitled to recover (1) damages (2) the dilutor’s profits, and (3) costs. See id.; see also id. § 1117(a) (specifying remedies).
We conclude, however, that damages are not available to Sportsman’s under the FTDA. The district court found that Sporty’s Farm did not act willfully. We review such findings of “willfulness” by a district court for clear error. See Bambu Sales, Inc. v. Ozak Trading Inc.,
Sportsman’s also argues that it is entitled to damages under state law. Because neither the FTDA nor the ACPA preempts state remedies such as CUTPA, damages under Connecticut law are not barred, and hence may be available to Sportsman’s. See H.R.Rep. No. 104-374,
CUTPA, Conn. Gen.Stat. Ann. § 42-110b(a) (West Supp.1999), states that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” In construing this statute, the Connecticut courts have applied the so-called “cigarette rule”
(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] ....
All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ....
Saturn Const. Co. v. Premier Roofing Co.,
We have no doubt that an ACPA violation meets the requirements of prong one of the cigarette rule test. But, despite our finding that Sporty’s Farm acted with a bad faith intent, we do not think that its conduct meets prong two. While Sporty’s Farm and Omega intended to do what they did, until today’s holding interpreting the new ACPA, the line between business tactics with respect to domain name use that were unfair and those that, if hard-nosed, were nonetheless legitimate was blurry. Under the circumstances, we do not believe that the district court erred when it found that their conduct should not retrospectively be termed “immoral, unethical, oppressive, or unscrupulous.” Moreover, prong three also cuts against a violation of CUTPA. Although the use of sportys.com and Sportsman’s inability to use its trademark as a domain name injured Sportsman’s, we cannot say that the record supports the additional contention that this injury was substantial enough to meet CUTPA’s requirements.
This does not, however, end our inquiry since the three prongs of the cigarette rule test need not all be met to find that unfair competition took place. Nevertheless, after weighing the cigarette rule factors, we conclude—as the district court did—that the actions of Sporty’s Farm and Omega did not contravene CUTPA. Although the removal of sportys.com from Sportsman’s was designed to give Omega what we would now deem to be an unfair competitive advantage, we cannot say that this behavior was so unseemly at the time it occurred that Sporty’s Farm and Omega should be found liable under state law.
In sum, then, we hold that the injunction issued by the district court was proper under the new anticybersquatting law, but that damages are not available to Sportsman’s under the ACPA, the FTÍDA, or CUTPA.
Sporty Farm’s also contends that even if its actions would today violate the FTDA or the ACPA, any injunction requiring it to relinquish use of sportys.com is impermissibly retroactive.
In Landgraf v. USI Film Products,
CONCLUSION
The judgment of the district court is AFFIRMED in all particulars.
Notes
. A mouse is a device that allows a computer user to issue commands by moving a marker across the screen and then clicking on the symbol, word, or icon that represents the particular information that the user wants to access.
. Certain symbols, such as apostrophes ('), cannot be used in a domain name.
. Nothing prevents an American commercial entity from seeking to use the .org or .us top level domains, but, especially in the United States, it has become customary for commercial web pages to use .com.
. Undoubtedly, there are many people who use a search engine before typing in a company name plus .com. The manner in which users search the Internet depends on how quickly they think the search engine is likely to locate the desired web page.
."Cyber” is the prefix used to denote Internet-related things. The realm of the Internet is often referred to as ''cyberspace.”
. The district court also rejected Sportsman's federal actions for false designation and unfair competition on the same rationale. These rulings have not been appealed.
. The FTDA does not provide for punitive damages. It does, however, contemplate treble damages. See 15 U.S.C. § 1125(c)(2); § 1117(b).
. Omega has not appealed since it prevailed on all the claims made against it by Sportsman's.
. The new Act permits a plaintiff to "elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits, an award of statutory damages in the amount of not less than $1,000 and not more than $100,000 per domain name, as the court considers just.” Pub.L. No. 106-113, § 3003. If the plaintiff does not so elect, the court may award damages under 15 U.S.C. § 1117(a) and (b), based on damages, profits, and the cost of the action. See id.
. In most respects, sporty’s meets the rigorous criteria laid out in § 1125(c)(1), requiring both fame and distinctiveness for protection under the FTDA. See Nabisco Brands, Inc., v. PF Brands, Inc.,
More vexing is the question posed by the criterion that focuses on "the degree of recognition of the mark in the trading areas and channels of trade used by the marks’ owner and the person against whom the injunction is sought.” Id. at § 1125(c)(1)(F). Sporty's Farm contends that, although sporty’s is a very well-known mark in the pilot and aviation niche market, Sportsman’s did not (and could not) prove that the mark was well-known to Sporty’s Farm's customers. We need not reach this question, as we would have had to do under the FTDA, since the ACPA provides protection not only to famous marks but also to distinctive marks regardless of fame.
. We note that "confusingly similar” is a different standard from the “likelihood of confusion” standard for trademark infringement adopted by this court in Polaroid Corp. v. Polarad Electronics Corp.,
. These factors are:
(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
(VII)the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;
(VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of subsection(c)(l) of section 43.
15 U.S.C. § 1125(d)(l)(B)(i).
. We expressly note that "bad faith intent to profit” are terms of art in the ACPA and hence should not necessarily be equated with "bad faith” in other contexts.
. The statute provides that a party "shall be liable in a civil action by the owner of a mark” if it meets the statutory requirements. 15 U.S.C. § 1125(d)(1)(A) (emphasis added). Although the statute uses the term "liable,” it does not follow that damages will be assessed. As we discuss below, damages can be awarded for violations of the Act but they are not
. The "cigarette rule” was originally adopted by the Federal Trade Commission in 1964. See Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking, 29 Fed.Reg. 8324, 8355 (1964), see also FTC v. Sperry & Hutchinson Co.,
. The district court rejected the retroactivity argument on the ground that Sporty's Farm did not begin using sportys.com until after the FTDA came into effect. Since Sporty's Farm’s retroactivity claim fails even if we analyze the issue as of the time when it initially contracted to acquire the domain name, we express no view on whether the district court's reference point was, in fact, the correct one.
. For the first time on appeal, Sporty’s Farm argues that the district court’s application of the FTDA constituted an unconstitutional taking of its property in sportys.com. We deem this argument waived. In the alternative, Sporty's Farm contends that the district court's injunction was inequitable because it deprived Sporty’s Farm of its lawfully acquired interest in sportys.com and hence was issued in violation of 15 U.S.C. § 1125(c)(1), which provides that injunctions are "subject to the principles of equity and upon such terms as the court deems reasonable.” The argument is meritless. The same facts that led us to find that Sporty’s Farm is liable under the ACPA preclude, in the circumstances before us, any inequity in depriving Sporty’s Farm of the domain name in issue.