Overstock.com, Inc. v. Kirstie Montgomery a/k/a Paige Gregory a/k/a Milena Vasquez a/k/a Ceasar Rios a/k/a Kendi Bartlett a/k/a Sindy Rivas a/k/a Jan Spencer a/k/a Shana Macdonald a/k/a Robin Cruz a/k/a Chris White a/k/a Chris Smith a/k/a Carla Hansen a/k/a Nick Spencer a/k/a Jan Jones a/k/a Americus Moon a/k/a Jen White a/k/a Jan Hansen a/k/a Carla Stern a/k/a Joe Douglas a/k/a Brynn Lynn a/k/a Jen Jones
Claim Number: FA0802001142096
Complainant is Overstock.com, Inc. (“Complainant”), represented CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are: <oevrstock.com>, <ov3rstock.com>, <overdtock.com>, <overs5ock.com>, <overs6ock.com>, <oversgock.com>, <overstlck.com>, <overstocck.com>, <overstoci.com>, <overstocm.com>, <overstoco.com>, <overstocp.com>, <overstofk.com>, <overstoxk.com>, <overstpck.com>, <overztock.com>, <ovetstock.com>, <ovverstock.com>, <pverstock.com>, <voerstock.com> and <woverstock.com>, registered with Enom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 31, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 4, 2008.
On February 1, 2008, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <oevrstock.com>, <ov3rstock.com>, <overdtock.com>, <overs5ock.com>, <overs6ock.com>, <oversgock.com>, <overstlck.com>, <overstocck.com>, <overstoci.com>, <overstocm.com>, <overstoco.com>, <overstocp.com>, <overstofk.com>, <overstoxk.com>, <overstpck.com>, <overztock.com>, <ovetstock.com>, <ovverstock.com>, <pverstock.com>, <voerstock.com> and <woverstock.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 15, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 6, 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 postmaster@oevrstock.com, postmaster@ov3rstock.com, postmaster@overdtock.com, postmaster@overs5ock.com, postmaster@overs6ock.com, postmaster@oversgock.com, postmaster@overstlck.com, postmaster@overstocck.com, postmaster@overstoci.com, postmaster@overstocm.com, postmaster@overstoco.com, postmaster@overstocp.com, postmaster@overstofk.com, postmaster@overstoxk.com, postmaster@overstpck.com, postmaster@overztock.com, postmaster@ovetstock.com, postmaster@ovverstock.com, postmaster@pverstock.com, postmaster@voerstock.com and postmaster@woverstock.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 14, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <oevrstock.com>, <ov3rstock.com>, <overdtock.com>, <overs5ock.com>, <overs6ock.com>, <oversgock.com>, <overstlck.com>, <overstocck.com>, <overstoci.com>, <overstocm.com>, <overstoco.com>, <overstocp.com>, <overstofk.com>, <overstoxk.com>, <overstpck.com>, <overztock.com>, <ovetstock.com>, <ovverstock.com>, <pverstock.com>, <voerstock.com> and <woverstock.com> domain names are confusingly similar to Complainant’s OVERSTOCK.COM mark.
2. Respondent does not have any rights or legitimate interests in the <oevrstock.com>, <ov3rstock.com>, <overdtock.com>, <overs5ock.com>, <overs6ock.com>, <oversgock.com>, <overstlck.com>, <overstocck.com>, <overstoci.com>, <overstocm.com>, <overstoco.com>, <overstocp.com>, <overstofk.com>, <overstoxk.com>, <overstpck.com>, <overztock.com>, <ovetstock.com>, <ovverstock.com>, <pverstock.com>, <voerstock.com> and <woverstock.com> domain names.
3. Respondent registered and used the <oevrstock.com>, <ov3rstock.com>, <overdtock.com>, <overs5ock.com>, <overs6ock.com>, <oversgock.com>, <overstlck.com>, <overstocck.com>, <overstoci.com>, <overstocm.com>, <overstoco.com>, <overstocp.com>, <overstofk.com>, <overstoxk.com>, <overstpck.com>, <overztock.com>, <ovetstock.com>, <ovverstock.com>, <pverstock.com>, <voerstock.com> and <woverstock.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Overstock.com, Inc., is an online retailer which offers a variety of products at discount prices. Complainant provides a service which sells various goods to consumers and provides an additional sales channel for manufacturers and distributors. Complainant has registered its OVERSTOCK.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,939,764 issued April 12, 2005). Complainant operates its website at the <overstock.com> domain name.
Respondent registered the <oevrstock.com>, <ov3rstock.com>, <overdtock.com>, <overs5ock.com>, <overs6ock.com>, <oversgock.com>, <overstlck.com>, <overstocck.com>, <overstoci.com>, <overstocm.com>, <overstoco.com>, <overstocp.com>, <overstofk.com>, <overstoxk.com>, <overstpck.com>, <overztock.com>, <ovetstock.com>, <ovverstock.com>, <pverstock.com>, <voerstock.com> and <woverstock.com> domain names between January 31, 2003 and May 21, 2004. Respondent’s disputed domain names redirect Internet users to Complainant’s website at the <overstock.com> domain name.
Preliminary Issue:
Multiple Respondents
The Panel must first consider whether these proceedings have been properly instituted. UDRP ¶ 3(c) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that Respondent is operating under various asserted alleged aliases. Additionally, the National Arbitration Forum’s Supplemental Rule 4(f)(ii) requires a Panel to dismiss the Complaint in relation to the domain names it deems to be insufficiently linked to Respondent.
The disputed domain names all redirect Internet users to Complainant’s website, located at the <overstock.com> domain name. Moreover, the disputed domain names forward traffic through the same affiliate network account ID, as well as through a common URL. The WHOIS information for the disputed domain names are similar, including contact e-mail addresses at <sonarc.net>. Additionally, the disputed domain names were registered within a short time frame of each other. The Panel finds that the listed aliases are the same person or entity, or entities controlled by the same person or entity, so that the filing of this Complaint is justified and proper pursuant to Supplemental Rule 4(f)(ii). See Yahoo!, Inc. v. Soksripanich & Others., D2000-1461 (WIPO Jan. 29, 2001) (finding multiple aliases to be the same respondent when the administrative contact information of the various subject domain names was the same or quite similar); see also Yahoo! Inc. & GeoCities v. Data Art Corp., D2000-0587 (WIPO Aug. 10, 2000) (decision rendered against multiple aliases where "the addresses used and the Contacts designated [were] inter-linking and identical.").
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.
The Panel finds that Complainant’s registration of the
OVERSTOCK.COM mark with the USPTO sufficiently establishes Complainant’s rights
in the mark for the purposes of Policy ¶ 4(a)(i). See Reebok
Int’l Ltd. v.
The disputed domain names all contain typosquatted versions of Complainant’s mark, as the disputed domain names contain either the addition of one extra character, the removal of a character, an incorrect character or two juxtaposed characters. The Panel finds that none of these modifications sufficiently distinguish any of the disputed domain names, as all such modifications take advantage of common typing errors by Internet users. Accordingly, the Panel finds the disputed domain names are confusingly similar to Complainant’s OVERSTOCK.COM mark under Policy ¶ 4(a)(i). See Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant must present a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has presented such a case, as the Panel determines it has done here, the burden shifts to Respondent to demonstrate rights or legitimate interests in the disputed domain names. As Respondent has not responded to the Complaint in the instant proceeding, the Panel may assume that Respondent lacks all rights and legitimate interests in the disputed domain names. However, the Panel chooses to proceed with a Policy ¶ 4(c) analysis based on the evidence in the record before rendering a final decision. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
There is no indication in any of the WHOIS information for the disputed domain names that Respondent is in any way commonly known by any of the disputed domain names. Moreover, Complainant has not authorized Respondent to use its mark in any way. Thus, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
All of the disputed domain names redirect to Complainant’s
website at the <overstock.com> domain name, in violation of Complainant’s
affiliate program and for Respondent’s own commercial benefit through the
accrual of click-through fees. Such use
is neither a bona fide offering of
goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). See Sports
Moreover, the nature of the disputed domain names
themselves, as they all take advantage of common typographical errors, indicate
a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See IndyMac Bank
F.S.B. v. Ebeyer, FA 175292
(Nat. Arb. Forum Sept. 19, 2003) (finding
that the respondent lacked rights and legitimate interests in the disputed
domain names because it “engaged in the practice of typosquatting
by taking advantage of Internet users who attempt to access Complainant's
<indymac.com> website but mistakenly misspell Complainant's mark by
typing the letter ‘x’ instead of the letter ‘c’”); see also LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of the disputed domain names to redirect
Internet users to Complainant’s website, in order for commercial gain through
the accrual of click-through fees demonstrates Respondent’s registration and
use of the disputed domain names in bad faith.
Moreover, as the disputed domain names resolve to Complainant’s website,
the disputed domain names are capable of creating a likelihood of confusion as
to Complainant’s source, sponsorship, affiliation and endorsement of the
disputed domain names and resulting websites.
This is a further indication of bad faith registration and use under
Policy ¶ 4(b)(iv). See Deluxe Corp.
v.
Finally, the use of typosquatted domain names indicates by
their very nature, bad faith registration and use under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the
<zonelarm.com> domain name] that capitalizes on the typographical error
of an Internet user is considered typosquatting. Typosquatting, itself is
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also K.R. USA, INC. v. SO SO
DOMAINS, FA 180624 (Nat. Arb. Forum Sept.
18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com>
and <tallahassedemocrat.com> domain names capitalized on the
typographical error of Internet users seeking the complainant's THE
PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting
and bad faith pursuant to Policy ¶ 4(a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has 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 <oevrstock.com>, <ov3rstock.com>, <overdtock.com>, <overs5ock.com>, <overs6ock.com>, <oversgock.com>, <overstlck.com>, <overstocck.com>, <overstoci.com>, <overstocm.com>, <overstoco.com>, <overstocp.com>, <overstofk.com>, <overstoxk.com>, <overstpck.com>, <overztock.com>, <ovetstock.com>, <ovverstock.com>, <pverstock.com>, <voerstock.com> and <woverstock.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 27, 2008
National Arbitration Forum