LTD Commodities, LLC v. Global Access
Claim Number: FA0805001183367
Complainant is LTD Commodities, LLC (“Complainant”), represented by Nora
Preece, of Law Offices of Alter and Preece, Illinois,
USA. Respondent is Global
Access (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <abcdistribbuting.com>, <abcdistributiing.com>, <acdistributing.com>, <abcdisttibuting.com> and <abcdistributor.com> registered with Moniker Online Services, 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
On May
14, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of June
3, 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@abcdistribbuting.com, postmaster@abcdistributiing.com, postmaster@acdistributing.com, postmaster@abcdisttibuting.com and postmaster@abcdistributor.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <abcdistribbuting.com>, <abcdistributiing.com>, <acdistributing.com>, <abcdisttibuting.com> and <abcdistributor.com> domain names are confusingly similar to Complainant’s ABC DISTRIBUTING mark.
2. Respondent does not have any rights or legitimate interests in the <abcdistribbuting.com>, <abcdistributiing.com>, <acdistributing.com>, <abcdisttibuting.com> and <abcdistributor.com> domain names.
3. Respondent registered and used the <abcdistribbuting.com>, <abcdistributiing.com>, <acdistributing.com>, <abcdisttibuting.com> and <abcdistributor.com>domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LTD Commodities, LLC, is a catalog retailer of
consumer products. Complainant also
conducts its retail business through its <abcdistributing.com> domain
name and corresponding website.
Complainant’s predecessor filed an application with the United States
Patent and Trademark Office (“USPTO”) for its ABC DISTRIBUTING mark on
Respondent registered the <abcdistributor.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 has provided evidence of its assignment of the
ABC DISTRIBUTING mark with the USPTO. The
USPTO application for the ABC DISTRIBUTING mark was filed on
Respondent’s disputed domain
names each contain Complainant’s ABC DISTRIBUTING mark with typographical or
grammatical alterations such as the addition or deletion of letters, or the use
of the noun “distributor” in place of the verb “distributing.” Additionally, the addition of the generic
top-level domain (“gTLD”) “.com,” is not relevant in evaluating whether a
disputed domain name is confusingly similar to a complainant’s mark. Therefore, the Panel finds these
typographical and grammatical alterations do not sufficiently distinguish
Respondent’s disputed domain names from Complainant’s ABC DISTRIBUTING mark,
thus the disputed domain names are confusingly similar to Complaniant’s mark
pursuant to Policy ¶ 4(a)(i). See 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 Nev. State Bank v. Modern Ltd. –
Cayman Web Dev., FA 204063 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
In its Complaint, Complainant asserts Respondent lacks rights and legitimate interests in the disputed domain names. Complainant must establish a prima facie case supporting its allegations that Respondent lacks rights and legitimate interests in the disputed domain names. After Complainant has sufficiently produced a prima facie case in support of its Complaint, the burden shifts to Respondent to demonstrate it does possess rights and legitimate interests in the disputed domain names. The Panel finds Complainant has adequately supported its claim that Respondent lacks rights and legitimate interests in the disputed domain names. Respondent has failed to submit a Response in this proceeding evidencing any rights or legitimate interests in the disputed domain names. Therefore, the Panel may infer Respondent lacks rights and legitimate interests in the disputed domain names; however, the Panel will peruse the record for evidence that Respondent possesses rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); 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 disputed domain names each resolve to websites
which offer links to various third-party commercial catalog services. The Panel finds Respondent’s use of the
disputed domain names is 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). 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 Or.
State Bar v. A Special Day, Inc., FA 99657
(Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and
sale of law-related books under Complainant's name is not a bona fide offering of goods and services
because Respondent is using a mark confusingly similar to the Complainant's to
sell competing goods.”).
Also, Respondent is using disputed
domain names which contain various typographical misspellings of Complainant’s
ABC DISTRIBUTING mark to display links to third-party commercial catalog
services that compete with Complainant’s business. The Panel finds this use constitutes
typosquatting and demonstrates Respondent’s lack of rights and legitimate
interests in the disputed domain names pursuant to 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
Additionally, Complainant asserts
Respondent is not commonly known by the disputed domain names. The WHOIS information and record do not
provide any information indicating Respondent is commonly known by the disputed
domain names. Therefore, the Panel finds
Respondent is not commonly known by disputed domain names pursuant to Policy ¶
4(c)(ii). See Michael Smith Custom Clothiers, Inc. v. Custom Shirt
Shop, FA 1109402 (Nat. Arb. Forum
Jan. 4, 2008) (“other ICANN panels have held, and this Panel agrees, that in
order to have rights or legitimate interests under the “commonly known”
provision of the Policy a respondent must be commonly known by the domain name
prior to registration of the domain name in issue.”); see also Ian Schrager Hotels, L.L.C.
v. Taylor, FA 173369 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is utilizing the disputed domain names to display links to third-party entitities which offer services that directly compete with Complainant’s commercial catalog business. The Panel finds Respondent’s competing uses of the disputed domain names are 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 EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Additionally, Respondent presumably profits from its competing
use of the confusingly similar disputed domain names in the form of
click-through fees. Respondent’s use demonstrates
an attempt by Respondent to profit from the goodwill associated with
Complainant’s mark. Thus the Panel finds
Respondent’s actions are evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). See 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); see also AltaVista Co. v. Krotov, D2000-1091
(WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the
respondent’s domain name resolved to a website that offered links to
third-party websites that offered services similar to the complainant’s
services and merely took advantage of Internet user mistakes).
Additionally, Respondent’s disputed domain names, which contain common typographical errors, are being used by Respondent to profit from Internet users’ mistaken typing of Complainant’s ABC DISTRIBUTING mark. The Panel finds Respondent’s use of the disputed domain names constitute typosquatting, which is further indication of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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)); 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 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 <abcdistribbuting.com>, <abcdistributiing.com>, <acdistributing.com>, <abcdisttibuting.com> and <abcdistributor.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: June 13, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum