Zappos.com, Inc. v. Web Services Pty c/o Aditya Roshni
Claim Number: FA0801001138443
Complainant is Zappos.com, Inc. (“Complainant”), represented by Sean
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zzappos.com>, registered with Enom, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On January 24, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 13, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <zzappos.com> domain name is confusingly similar to Complainant’s ZAPPOS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <zzappos.com> domain name.
3. Respondent registered and used the <zzappos.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Zappos.com, Inc.,
operates a popular online retail store for footwear and accessories. Complainant owns trademark registrations with
the United States Patent and Trademark Office (“USPTO”) in both the ZAPPOS
(Reg. No. 2,867,708 issued
Respondent registered the <zzappos.com>
domain name on
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant asserts rights in the ZAPPOS.COM mark through
registration with the USPTO. The Panel
finds that Complainant’s trademark registration establishes rights under Policy
¶ 4(a)(i). See Metro.
Life Ins. Co. v. Bin g Glu,
FA 874496 (Nat Arb. Forum Feb. 13, 2007) (finding
rights in the METLIFE mark as a result of its registration with the
Respondent’s <zzappos.com> domain name is
confusingly similar to Complainant’s mark.
Respondent’s domain name contains Complainant’s ZAPPOS.COM mark in its
entirety and adds the letter “z.” In Reuters
Ltd. v. Global Net 2000, Inc., the panel found that domain names differing
by one letter from a distinctive mark result in a finding of confusing similarity
under the Policy. D2000-0441 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In instances where Complainant has made
a prima facie case in support of its
allegations, the burden shifts to Respondent to set forth concrete evidence
indicating that it has rights or legitimate interests in accordance with Policy
¶ 4(a)(ii). The
Panel finds that Complainant’s assertions are sufficient to establish a prima facie case for purposes of the
Policy. See SEMCO Prods., LLC v. dmg world media (
The disputed domain name resolves to a website that prominently features a search engine and offers links to third-party commercial websites offering services and products that directly compete with Complainant’s business. The Panel finds that such use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
A review of Respondent’s WHOIS registration information
reveals that the registrant of the <zzappos.com>
domain name is “Web Services Pty c/o Aditya
Roshni.” In light of this
evidence and Respondent’s failure to proffer any evidence to the contrary, the
Panel finds that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong
evidence that Respondent is commonly known by the disputed domain name in order
to find that Respondent has rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c)(ii).
However, there is no evidence on record, and Respondent has not come
forward with any proof to establish that it is commonly known as CELEBREXRX or
<celebrexrx.com>.”); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) have been satisfied.
As indicated above, Respondent’s <zzappos.com> domain name resolves to a website that offers, inter alia, links to competing websites. The Panel finds that Respondent’s use amounts to a disruption of Complainant’s business pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a website containing commercial links to the websites of the complainant’s competitors represented bad faith registration and use under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Respondent’s use of the
disputed domain name presumably results in monetary gain for Respondent through
the procurement of click-through advertising fees. Additionally, Complainant alleges that
Respondent’s use is likely to engender confusion among Internet users expecting
to view information regarding Complainant’s business as to the source and
affiliation of the resulting material.
The Panel finds that such use evinces registration and use in bad faith
pursuant to Policy ¶ 4(b)(iv). See BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) have been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zzappos.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: March 3, 2008
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