Zappos.com, Inc. v. Umbeke Membe c/o Deleting domain
Claim Number: FA0804001181276
Complainant is Zappos.com, Inc. (“Complainant”), represented by Seán
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zappoos.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
7, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of May
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 email@example.com 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 <zappoos.com> domain name is confusingly similar to Complainant’s ZAPPOS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <zappoos.com> domain name.
3. Respondent registered and used the <zappoos.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Zappos.com, Inc., is
an online retailer for footwear and accessories. Complainant registered the ZAPPOS.COM mark
with the United States Patent and Trademark Office (“USPTO”) on
Respondent registered the disputed 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 has registered the ZAPPOS.COM mark with the USPTO, and thus the Panel concludes that Complainant has established rights to the mark pursuant to Policy ¶ 4(a)(i). 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant contends that the <zappoos.com> domain name is confusingly similar to Complainant’s
ZAPPOS.COM mark. The Panel concludes
that the inclusion of the additional letter “o” is not sufficient to
distinguish the disputed domain name from Complainant’s mark. In Marriott International, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has the initial burden of showing that
Respondent lacks all rights and legitimate interests in the disputed domain
name. In Do The Hustle, LLC v. Tropic
Web, D2000-0624 (WIPO
Respondent failed to respond to the Complaint. The Panel in American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Complainant asserts that Respondent is not commonly known by
the <zappoos.com> domain
name. The WHOIS information indicates
that the registrant is “Umbeke Membe c/o Deleting
domain.” There is nothing in the WHOIS information
suggesting that Respondent is commonly known by the disputed domain name. Complainant contends that it has no
association or business relationship with Respondent. Therefore, the Panel concludes that
Respondent is not commonly known by the disputed domain name under Policy ¶
4(c). 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
Respondent’s use of the disputed domain name to display
pop-up advertisements and links to competing websites fails to demonstrate
rights or legitimate interests. The
Panel concludes that Respondent’s use of the <zappoos.com>
domain name 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 24
Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For
Moreover, Respondent is taking advantage of a common
misspelling of Complainant’s mark, and is therefore engaged in
typosquatting. The Panel finds that this
practice is additional evidence that Respondent has no rights or legitimate
interests in the disputed domain name 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
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s use of the <zappoos.com> domain name to redirect
Internet users to competing websites and to display pop-up advertisements
evidences registration and use in bad faith.
The Panel finds that Respondent’s use is capable of creating confusion
as to Complainant’s source or sponsorship of the website that resolves from the
disputed domain name. Moreover,
Respondent is commercially benefiting from the goodwill associated with
Complainant’s ZAPPOS.COM mark. The Panel
finds that Respondent’s use is evidence of registration and use in bad faith
under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”); see also Drs. Foster & Smith, Inc. v. Lalli,
FA 95284 (Nat. Arb. Forum
Respondent’s use of the
disputed domain name is also capable of disrupting Complainant’s business, and
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney
Enters., Inc. v. Noel, FA 198805 (Nat.
Finally, the Panel finds that Respondent’s practice of
typosquatting evidences registration and use in bad faith under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
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 <zappoos.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: May 4, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum