national arbitration forum

 

DECISION

 

Cellular South, Inc. v. Zhang Peng

Claim Number: FA0808001220058

 

PARTIES

Complainant is Cellular South, Inc. (“Complainant”), represented by Charles L. McBride, of Brunini, Grantham, Grower and Hewes, PLLC, Mississippi, USA.  Respondent is Zhang Peng (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <celularsouth.com>, registered with Moniker Online Services, Inc.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Honorable Paul A. Dorf (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on August 12, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 15, 2008.

 

On August 22, 2008, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <celularsouth.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name.  Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 August 29, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 18, 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@celularsouth.com by e-mail.

 

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

 

On September 29, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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 <celularsouth.com> domain name is confusingly similar to Complainant’s CELLULAR SOUTH mark.

 

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

 

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

 

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

 

FINDINGS

Complainant owns numerous trademark registration of the CELLULAR SOUTH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,549,516 issued July 25, 1989) for wireless telephone telecommunications services. 

 

Respondent’s <celularsouth.com> domain name was registered on November 27, 2005.  It currently resolves to website containing various links to third-parties that offer cellular telephone goods and services.

 

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 has sufficiently established rights in the CELLULAR SOUTH mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i).  See 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); see also Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).

 

Respondent’s <celularsouth.com> domain name is a close misspelling of Complainant’s mark.  It omits the second “l” in Complainant’s mark.  Such a simple misspelling does not adequately distinguish the disputed domain name.  See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity).  Additionally, the disputed domain name contains the generic top-level domain (“gTLD”) “.com.”  However, the inclusion of gTLD is typically treated as irrelevant to a Policy ¶ 4(a)(i) analysis.  See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).  For both of theses reasons, the Panel finds that the <celularsouth.com> domain name is confusingly similar to the CELLULAR SOUTH mark pursuant to Policy ¶ 4(a)(i). 

 

The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Before the Panel can make determinations under Policy ¶ 4(a)(ii), Complainant must establish a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).  The Panel finds that Complainant has met this threshold and that the burden is accordingly shifted to Respondent to prove that it does have rights and legitimate interests in the disputed domain name.  See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant under Policy ¶ 4(c), the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name).

 

No Response has been filed in this case.  Therefore, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name.  Nonetheless, the Panel will proceed to examine the Record in consideration of the elements listed under Policy ¶ 4(c).  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 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 <celularsouth.com> domain name’s WHOIS information identifies Respondent as “Zhang Peng.”  There is no other information in the record.  Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

The disputed domain name resolves to a links page.  These links are to third-parties that offer competing or similar cellular phone goods and services.  The Panel finds that this does not constitute 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 Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did not constitute 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 also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).

 

Moreover, the Panel finds that Respondent is engaging in typosquatting.  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.”  Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003).  Respondent’s <celularsouth.com> domain name simply omits one letter from Complainant’s mark.  The Panel considers this form of typosquatting to be further evidence that Respondent lacks rights and legitimate interests in the disputed domain name.  See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of the complainant's mark); 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 concludes that Complainant has sufficiently established Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

The disputed domain name resolves to a series of links that redirect Internet users to competitors of Complainant.  Without any additional information, the Panel may presume that Respondent’s purpose is to disrupt the business of Complainant.  As a result, the Panel finds that Respondent registered and is using the <celularsouth.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii).  See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).

 

Furthermore, these links may be presumed to financially benefit Respondent through some type of referral fee.  The Panel considers this to be additional evidence of Respondent’s bad faith registration and use of the <celularsouth.com> domain name pursuant to Policy ¶ 4(b)(iv).  See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees.   Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).

 

And finally, as previously established, Respondent is engaging in typosquatting.  Typosquatting is itself further evidence of Respondent’s bad faith registration and use of the <celularsouth.com> domain name pursuant to Policy ¶ 4(a)(iii).  See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).

 

The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(iii).

 

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 <celularsouth.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Honorable Paul A. Dorf (Ret.), Panelist

Dated:  October 14, 2008

 

 

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