The Coryn Group II, LLC v. USA 300
Complainant is The Coryn Group II, LLC (“Complainant”), represented by Thomas
P. Arden, of Holland & Knight LLP, Illinois, USA. Respondent is USA300 (“Respondent”), South
REGISTRAR AND DISPUTED DOMAIN
The domain name at issue is <usa300.com>, registered with Cydentity, Inc. d/b/a Cypack.com.
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
Complainant submitted a Complaint to
the National Arbitration Forum electronically on October 17, 2008;
the National Arbitration Forum received a hard copy of the Complaint on November 13, 2008.
The Complaint was submitted in both Korean and English.
On November 4, 2008,
Cydentity, Inc. d/b/a Cypack.com confirmed by e-mail to the National
Arbitration Forum that the <usa300.com> domain name is
registered with Cydentity, Inc. d/b/a Cypack.com and that
Respondent is the current registrant of the name. Cydentity,
Inc. d/b/a Cypack.com has
verified that Respondent is bound by the Cydentity,
Inc. d/b/a Cypack.com 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 November 14, 2008,
a Korean Language Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of December 4, 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 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.
On December 11, 2008, pursuant to Complainant's
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Judge Ralph Yachnin 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
Pursuant to Rule 11(a) the Panel
determines that the language requirement has been satisfied through the Korean
language Complaint and Commencement Notification and, absent a Response,
determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain
name be transferred from Respondent to Complainant.
Complainant makes the following assertions:
<usa300.com> domain name is
confusingly similar to Complainant’s USA 3000 mark.
does not have any rights or legitimate interests in the <usa300.com> domain name.
registered and used the <usa300.com>
domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant, The Coryn Group
II, LLC, holds a registration in the USA 3000 mark (Reg. No. 2,986,720
issued August 23,
2005) with the United States Patent and Trademark Office (“USPTO”)
in connection with its air travel business.
Complainant operates its own website resolving from the
<usa3000.com> domain name.
Respondent registered the <usa300.com>
domain name on May
6, 2007. The disputed domain
name is being used to resolve to a website listing links for third-party
websites that compete with Complainant’s travel business.
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:
domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
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
Identical and/or Confusingly Similar
Registration of the USA 3000 mark with the USPTO is
sufficient to establish Complainant’s rights in 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).
domain name consists of Complainant’s USA 3000 mark, with one “0” removed
and the generic top-level domain (gTLD) “.com.”
The gTLD is irrelvent and misspelling of the USA 3000 mark in the disputed
domain name results in the domain name being confusingly similar to the mark
pursuant to Policy ¶ 4(a)(i). See Guinness UDV N. Am., Inc. v.
Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001)
(finding the <smirnof.com> domain name confusingly similar to the
complainant’s SMIRNOFF mark because merely removing the letter “f” from the
mark was insignificant); see also Dow Jones & Co., Inc. v. Powerclick, Inc.,
D2000-1259 (WIPO Dec.
1, 2000) (holding that the deliberate introduction of errors or
changes, such as the addition of a fourth “w” or the omission of periods or
other such “generic” typos do not change respondent’s infringement on a core
trademark held by the complainant); see
also Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June
25, 2000) (finding that the top level of the domain name such as
“.net” or “.com” does not affect the domain name for the purpose of determining
whether it is identical or confusingly similar).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Rights or Legitimate Interests
The initial burden under Policy ¶ 4(a)(ii)
is on Complainant to prove that Respondent does not have any rights or
legitimate interests in the disputed domain name. Once Complainant has made a
prima facie case, the burden shifts
to Respondent to show that it does have rights or legitimate interests pursuant
to the directions provided in Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the
Respondent has no rights or legitimate interests in respect of the Domain Name
requires the Complainant to prove a negative. For the purposes of this sub
paragraph, however, it is sufficient for the Complainant to show a prima facie
case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.”); see also 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”). The Panel finds that Complainant has presented
a prima facie case, and the Panel now
chooses to consider whether an evaluation of all the evidence demonstrates
rights or legitimate interests for Respondent under Policy ¶ 4(c).
No response has been submitted in this case. Therefore, the Panel may presume that
Respondent has no rights or legitimate interests in the <usa300.com> domain name. See
CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the
respondent’s failure to produce requested documentation supports a finding for
the complainant); see also Law Soc’y of Hong Kong v. Domain Strategy,
Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated
to participate in a domain name dispute . . . but the failure to participate
leaves a respondent vulnerable to the inferences that flow naturally from the
assertions of the complainant and the tribunal will accept as established
assertions by the complainant that are not unreasonable.”). However, the Panel will still examine the
record in consideration of the factors listed under Policy ¶ 4(c).
Respondent is using the
domain name to link to competing third-party. Respondent’s use of a domain name that is
confusingly similar to Complainant’s USA 3000 mark to redirect Internet users interested in Complainant’s
travel services to competing websites is not a use in connection with a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii), See Nat’l
Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003)
(“Typosquatting … as a means of redirecting consumers against their will to
another site, does not qualify as a bona fide offering of goods or services,
whatever may be the goods or services offered at that site.”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to
divert Internet users seeking Complainant's website to a website of Respondent
and for Respondent's benefit is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii).”).
Moreover, there is no evidence in the record suggesting that
Respondent is commonly known by the <usa300.com>
domain name. Thus, Respondent has not established any
rights or legitmate interests in the <usa300.com> domain
name under Policy ¶
4(c)(ii). See Ian Schrager Hotels, L.L.C. v.
Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable
evidence to support the assertion that a respondent is commonly known by a
domain name, the assertion must be rejected); see also RMO, Inc. v. Burbridge, FA 96949
(Nat. Arb. Forum May
16, 2001) (interpreting Policy ¶ 4(c)(ii)
"to require a showing that one has been commonly known by the domain name
prior to registration of the domain name to prevail").
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
The Panel infers
that Respondent registered the <usa300.com>
domain name in an effort to take advantage of misspelling or typographical
errors by Internet users. This
typosquatting is evidence of bad faith registration and use pursuant to 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)).
of Complainant’s USA
3000 in the <usa300.com> domain name to redirect Internet users to competing
websites suggests that Respondent registered the disputed domain name intending
to disrupt Complainant’s business. The
Panel finds that this is evidence of bad faith registration and use under
Policy ¶ 4(b)(iii).
See S. Exposure v.
S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000)
(finding that the respondent registered the domain name in question to disrupt
the business of the complainant, a competitor of the respondent); see also 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).”).
The Panel infers
that Respondent receives click-through fees for diverting Internet users to
third-party websites. Because
Respondent’s domain name is confusingly similar to Complainant’s USA
3000 mark, Internet users accessing
Respondent’s disputed domain name may become confused as to Complainant’s sponsorship
or affiliation with the resulting website.
Thus, Respondent’s use of the <usa300.com>
domain name constitutes bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). See Canadian Tire
Corp. v. domain adm’r firstname.lastname@example.org 1111111111,
D2003-0232 (WIPO May
22, 2003) (finding the respondent registered and used the
domain name in bad faith because the respondent “created ‘a likelihood of
confusion with the complainant’s mark as to the source, sponsorship,
affiliation, or endorsement of the Respondent’s web site or location’. . .
through Respondent’s persistent practice of ‘typosquatting’”); 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the
ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <usa300.com> domain name be TRANSFERRED
from Respondent to Complainant.
Ralph Yachnin Panelist
Justice, Supreme Court, NY (Ret.)
December 26, 2008
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