national arbitration forum

 

DECISION

 

CafePress.com, Inc. v. LAKSH INTERNET SOLUTIONS PRIVATE LIMITED. c/o LAKSH INTERENT SOLUTIONS PRIVATE LIMITED.

Claim Number: FA0805001190323

 

PARTIES

 

Complainant is CafePress.com, Inc. (“Complainant”), represented by Daniel Pontes, California, USA.  Respondent is LAKSH INTERNET SOLUTIONS PRIVATE LIMITED. c/o LAKSH INTERENT SOLUTIONS PRIVATE LIMITED. (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

 

The domain name at issue is <cafapress.com>, registered with Lead Networks Domains Pvt. Ltd.

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 13, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 14, 2008.

 

On June 8, 2008, Lead Networks Domains Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <cafapress.com> domain name is registered with Lead Networks Domains Pvt. Ltd. and that Respondent is the current registrant of the names.  Lead Networks Domains Pvt. Ltd. has verified that Respondent is bound by the Lead Networks Domains Pvt. Ltd. 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 June 16, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 7, 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@cafapress.com by e-mail.

 

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

 

On July 10, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <cafapress.com> domain name is confusingly similar to Complainant’s CAFEPRESS.COM mark.

 

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

 

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

 

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

 

FINDINGS

 

Complainant, CafePress.com, Inc., is a widely recognized Internet company that allows individuals and small business to create, buy, and sell unique, customized merchandise.   Complainant has registered the CAFEPRESS.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,571,049 issued May 21, 2002).

 

Respondent registered the disputed domain name on June 14, 2005. The <cafapress.com> domain name currently resolves to a website that displays third-party links in direct competition with Complainant.

 

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

 

The Panel finds that Complainant has registered the CAFEPRESS.COM mark with the USPTO and therefore has established rights to the mark pursuant to Policy ¶ 4(a)(i).  See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).

 

Complainant contends that the <cafapress.com> domain name is confusingly similar to the CAFEPRESS.COM mark.  Respondent’s misspelling of the word “cafe” is insufficient to create a distinction.  The Panel finds that this misspelling is an example of typosquatting.  Therefore, the Panel finds that the <cafapress.com> domain name is confusingly similar to Complainant’s CAFEPRESS.COM mark pursuant to Policy ¶ 4(a)(i).  See 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”); 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).

 

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

 

Rights or Legitimate Interests

 

Complainant has alleged Respondent does not possess rights or legitimate interests in the domain name in dispute.  Complainant must present a prima facie case to support these allegations before the burden shifts to Respondent to prove it does have rights or legitimate interests in the disputed domain name.  The Panel finds Complainant has presented a sufficient prima facie case to support its assertions and Respondent has failed to respond to these proceedings.  Therefore, the Panel may conclude Respondent does not possess rights or legitimate interests in the disputed domain name.  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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name.  It also allows the Panel to accept all reasonable allegations set forth…as true.”).  The Panel, however, will examine the record and determine if Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). 

 

Complainant asserts that Respondent has never been authorized to use the CAFEPRESS.COM mark, and that Respondent is not and has never been commonly known by the disputed domain name.  Further, the WHOIS information does not indicate that Respondent is commonly known by the disputed domain name.  Thus, the Panel finds that Respondent is not commonly known by the <cafapress.com> domain name pursuant to Policy ¶ 4(c)(ii).  See 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); see also 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).

 

Respondent is using the <cafapress.com> domain name to advertise links to third-party competitors.  The Panel finds that such use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also 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).  

 

Furthermore, the Panel finds that the <cafapress.com> domain name is a typosquatted version of Complainant’s mark.  Under Policy ¶ 4(a)(ii), this typosquatting further indicates Respondent’s lack of rights and legitimate interests in the disputed domain name.  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 Complainant has met the initial burden of showing that Respondent lacks rights and legitimate interests, and therefore has made a prima facie case under Policy ¶ 4(a)(ii), which is not refuted by any evidence in the record.  Therefore, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent’s use of the <cafapress.com> domain name to commercially gain by advertising links to competing services constitutes bad faith registration and use under Policy ¶ 4(b)(iii).  See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also 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). 

 

Complainant contends that Respondent is using the <cafapress.com> domain name for commercial gain by advertising links to competing services, and benefiting from the likely confusion between Complainant’s mark and the disputed domain name.  The Panel finds that the similarity between the disputed domain name and the CAFEPRESS.COM mark are likely to create confusion as to Complainant’s source, sponsorship, affiliation, or endorsement of the website that resolves from the disputed domain name under Policy ¶ 4(b)(iv).  See 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); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).

 

Finally, the typosquatted nature of the <cafapress.com> domain name also indicates that Respondent registered and is using the disputed domain name in bad faith 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 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)).

 

The Panel finds that 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 <cafapress.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Bruce E. Meyerson, Panelist

Dated:  July 24, 2008

 

 

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