The Coryn Group II, LLC formerly The Coryn Group, Inc. v. Hanjin Wo
Claim Number: FA0804001174493
Complainant is The Coryn Group II, LLC, formerly The Coryn Group,
Inc. (“Complainant”), represented by Thomas P. Arden, of Holland & Knight
LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <applevacatoins.com>, registered with Rebel.com.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 2, 2008; the National Arbitration Forum received a hard copy of the Complaint on April 3, 2008.
On April 4, 2008, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <applevacatoins.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.com 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
7, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
April 28, 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@applevacatoins.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 5, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <applevacatoins.com> domain name is confusingly similar to Complainant’s APPLE VACATIONS mark.
2. Respondent does not have any rights or legitimate interests in the <applevacatoins.com> domain name.
3. Respondent registered and used the <applevacatoins.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Coryn Group II, LLC, is a leading travel and tour provider, which offers vacation packages to domestic and foreign destinations, consisting of air transportation, ground transfers, and hotel accommodations. Complainant uses the APPLE VACATIONS mark in connection with the advertising, promotion, and sale of travel and vacation package services. Complainant owns several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the APPLE VACATIONS mark (i.e. Reg. No. 1,462,268 issued October 20, 1987).
Respondent registered the <applevacatoins.com> domain name on June 30, 2006. Respondent’s disputed domain name resolves to a website offering products and services in direct competition with Complainant.
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 has established rights in the APPLE VACATIONS mark pursuant to Policy ¶ 4(a)(i) through registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Complainant contends that Respondent’s <applevacatoins.com> domain name is confusingly
similar to Complainant’s APPLE VACATIONS mark.
Respondent’s disputed domain name contains a misspelled version of
Complainant’s mark and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the misspelling of a
mark by a few letters fails to create a distinct domain name pursuant to Policy
¶ 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 Belkin Components v. Gallant,
FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain
name confusingly similar to the complainant's BELKIN mark because the name
merely replaced the letter “i” in the complainant's mark with the letter
“e”). In addition, the Panel finds that
the addition of a gTLD is irrelevant in distinguishing a disputed domain name
from a mark. 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 Gardline Surveys Ltd. v. Domain Fin. Ltd., FA
153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is
irrelevant when establishing whether or not a mark is identical or confusingly
similar, because top-level domains are a required element of every domain
name.”). Therefore, pursuant to Policy ¶
4(a)(i), Respondent’s <applevacatoins.com>
domain name
is confusingly similar to Complainant’s mark.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <applevacatoins.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds in this case that Complainant has established a prima facie case. See 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).”); see also 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”).
Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See 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); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel chooses to examine the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Respondent is neither commonly known by the <applevacatoins.com> domain name, nor licensed to register domain names using the APPLE VACATIONS mark. Respondent’s WHOIS information identifies Respondent as “Hanjin Wo.” Without affirmative evidence of being commonly known by the <applevacatoins.com> domain name, the Panel finds that Respondent has not established rights or legitimate interests in the <applevacatoins.com> domain name under 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 Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Respondent is using the <applevacatoins.com> domain name in order to
attract unknowing Internet users to the associated website containing products
and services in direct competition with Complainant. The Panel finds that such use of a disputed
domain name is neither a bona fide
offering of goods and services pursuant to Policy ¶ 4(c)(i), nor 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 Coryn
Group, Inc. v. Media Insight, FA 198959
(Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the
domain names for a bona fide offering of goods or services nor a
legitimate noncommercial or fair use because the respondent used the names to
divert Internet users to a website that offered services that competed with
those offered by the complainant under its marks).
In addition, Respondent’s use of a misspelled version of Complainant’s mark is a form of typosqautting. The Panel finds that a respondent’s typosquatted version of a complainant’s mark used to attract unknowing Internet users is evidence that Respondent lacks all rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet users to a search engine webpage, and failed to respond to the complaint).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the <applevacatoins.com> domain name in order to attract unknowing internet users to a typcosquatted version of Complainant’s mark is evidence of bad faith registration and use pursuant to 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 Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
In addition, the Panel finds that Respondent’s use of the disputed domain name to directly compete with Complainant is further evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant).
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 <applevacatoins.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: May 16, 2008
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