national arbitration forum

 

DECISION

 

Veer, Inc. v. Admin, Domain c/o Veer Incorporated

Claim Number: FA0803001163885

 

PARTIES

Complainant is Veer, Inc. (“Complainant”), represented by Gregory F. Wesner, of Kirkmatrick & Lockhart Preston Gates Ellis LLP, Washington, USA.  Respondent is Admin, Domain c/o Veer Incorporated (“Respondent”), Alberta, Canada.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <veeer.com>, registered with Nameview, Inc.

 

PANEL

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.

 

Honorable Karl V. Fink (Ret.), as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on March 17, 2008; the National Arbitration Forum received a hard copy of the Complaint on March 17, 2008.

 

On April 17, 2008, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <veeer.com> domain name is registered with Nameview, Inc. and that Respondent is the current registrant of the name.  Nameview, Inc. has verified that Respondent is bound by the Nameview, 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 April 24, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 14, 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@veeer.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On May 21, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <veeer.com> domain name is confusingly similar to Complainant’s VEER mark.

 

2.      Respondent does not have any rights or legitimate interests in the <veeer.com> domain name.

 

3.      Respondent registered and used the <veeer.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Veer, Inc. is an online provider of graphic content and design-related products.  Complainant has used its VEER mark in commerce continuously to identify its visual graphic products and services.  Complainant’s <veer.com> domain name allows Internet users to browse, purchase and download design content such as photography, illustration and typography.  Complainant also offers a line of design products including apparel, bags and home accessories.  Complainant’s domain name receives approximately 250,000 unique Internet users a month and Complainant’s annual revenues have exceeded $50 million dollars.  In addition, Complainant registered its VEER mark with the United States Patent and Trademark Office (“USPTO”) on March 6, 2007 (Reg. No. 3,214,986). 

 

Respondent registered the <veeer.com> domain name on June 11, 2005 and the disputed domain name resolves to a website which displays links to visual graphic products and services that directly compete with Complainant’s business.  Additionally, Respondent registered the disputed domain name using Complainant’s contact information.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

Complainant did not file an application for the registration of its VEER mark with the USPTO until after Respondent registered the disputed domain name.  Registration of a mark, however, is unnecessary under Policy ¶ 4(a)(i), provided Complainant can establish common law rights in its VEER mark which predate Respondent’s registration of the disputed domain name.  See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”). 

 

Complainant has continuously used its VEER mark in commerce since 2002 in connection with its visual graphics business.  Complainant has used its mark to offer visual graphic products and services for sale online at its <veer.com> domain name.  Complainant has established a significant base of Internet traffic to the website resolving from its <veer.com> domain name.  Complainant has also raised significant annual revenues from its visual graphics business.  Therefore, the Panel finds Complainant has established common law rights in its VEER mark pursuant to Policy ¶ 4(a)(i) and these common law rights date back to at least 2002.  See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Bibbero Sys., Inc. v. Tseu & Assoc., FA 94416 (Nat. Arb. Forum May 9, 2000) (finding, while the complainant had registered the BIBBERO SYSTEMS, INC. mark, it also had common law rights in the BIBBERO mark because it had developed brand name recognition with the word “bibbero”).

 

Respondent’s <veeer.com> domain name fully incorporates Complainant’s VEER mark with the addition an extra “e,” which is a common typographical error.  The addition of a common typographical error does not sufficiently distinguish the disputed domain name from Complainant’s mark.  Therefore, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s VEER mark pursuant to Poilcy ¶ 4(a)(i).  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent’s domain name <eebay.com> is confusingly similar to the complainant’s registered EBAY trademark).  Also, the addition of the generic top-level domain “.com,” is not relevant in evaluating whether a disputed domain name is confusingly similar to a mark pursuant to Policy ¶ 4(a)(i) because a top-level domain is a requirement of every domain name.  See Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).

 

The Panel finds Policy ¶ 4(a)(i) has been satisfied. 

 

Rights or Legitimate Interests

 

Complainant asserts Respondent lacks rights and legitimate interests in the disputed domain name.  Complainant must establish a prima facie case to support these assertions, and the Panel finds Complainant has done so in these proceedings.  Once Complainant has produced a sufficient prima facie case, the burden shifts to Respondent to establish it does have rights or legitimate interests in the disputed domain name.  Respondent failed to submit a response to these proceedings, thus the Panel may infer Respondent lacks rights and legitimate interests in the disputed domain name.  However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).  See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).

 

Respondent’s <veeer.com> domain name resolves to a website which offers visual graphic products and services that directly compete with Complainant’s business.  The Panel finds Respondent’s use constitutes diversion and is not a use in connection with 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).  See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).

 

In addition, Respondent’s use of a misspelling of Complainant’s mark to offer competing products and services constitutes typosquatting, which is further evidence Respondent does not possess rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”); 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”).

 

Although it appears Respondent is commonly known by the disputed domain name, Respondent has merely registered the disputed domain name under the “Veer Incorporated,” name and has provided Complainant’s contact information.  Complainant asserts it did not register the disputed domain name and has not given Respondent permission to use its VEER mark.  Without additional information to support that Respondent was commonly known by the disputed domain name prior to its registration, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”); see also Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’  However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”).

 

The Panel finds Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent’s disputed domain name offers Internet users visual graphic products and services which directly compete with Complainant’s business.  The Panel finds Respondent’s use constitutes disruption and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between the complainant and the respondent, the respondent likely registered the contested domain name with the intent to disrupt the complainant's business and create user confusion).

 

Respondent is using the website resolving from its confusingly similar disputed domain name to provide Internet users with competing visual graphic products and services.  Respondent presumably profits from this use in the form of click-through fees.  Additionally, Respondent’s use of Complainant’s VEER mark creates a likelihood of confusion regarding the source of the content resolving from the disputed domain name.  The Panel finds this is an attempt by Respondent to profit from the goodwill associated with Complainant’s mark.  Therefore, the Panel finds Respondent’s actions are an attempt to profit from its use of the confusingly similar disputed domain name and these actions constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); see also Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”).

 

Additionally, Respondent is using a common typographical error in order to lure Internet users from Complainant’s <veer.com> domain name to Respondent’s <veeer.com> domain name.  The Panel finds this use constitutes typosquatting and is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also Sports Auth. Mich., Inc. v. Skander, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use).

 

The Panel finds Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <veeer.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Honorable Karl V. Fink (Ret.), Panelist

Dated:  June 4, 2008

 

 

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