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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