CompUSA Management Company v. Azra Khan
Claim Number: FA0208000123921
Complainant is CompUSA Management Company, Dallas, TX, USA (“Complainant”) represented by Lee Ann Wheelis, of Thompson & Knight LLP. Respondent is Azra Khan, Rawalpindi, PAKISTAN (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <copmusa.com>, registered with iHoldings.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on August 29, 2002; the Forum received a hard copy of the Complaint on September 3, 2002.
On August 29, 2002, iHoldings.com confirmed by e-mail to the Forum that the domain name <copmusa.com> is registered with iHoldings.com and that Respondent is the current registrant of the name. iHoldings.com has verified that Respondent is bound by the iHoldings.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 September 3, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 23, 2002 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 firstname.lastname@example.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On October 8, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 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 that the domain name be transferred from Respondent to Complainant.
The <copmusa.com> domain name is confusingly similar to Complainant's COMPUSA mark.
Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
Respondent did not submit a Response.
Complainant first started using the COMPUSA mark in commerce in relation to its software and computer related products in 1991. Complainant first registered the COMPUSA mark with the United States Patent and Trademark Office in 1992, as Registration Number 1,735,429. Complainant operates approximately 224 retail stores in 84 major United States metropolitan markets. Complainant also operates a retail Internet website for sales of computers, software, and video games.
Respondent registered the disputed domain name on January 17, 2002. Respondent is using the disputed domain name in order to divert Internet users to a website that contains links to Internet-based sellers of computers and video games, as well as links to video-game related periodicals and other advertisements.
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 the 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.
Paragraph 4(a) of the Policy requires that the 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 established that it has rights in the COMPUSA mark through registration with the United States Patent and Trademark Office and continuous use.
Respondent’s <copmusa.com> domain name is confusingly similar to Complainant’s COMPUSA mark because it takes advantage of a common spelling error of Internet users. Respondent merely transposes the “p” and the “m,” thereby ensnaring any Internet user who mistakenly types Respondent’s domain name into the browser. Transposed letters in a well-known mark do not create a mark that is distinct enough to overcome a Policy ¶ 4(a)(i) confusingly similar analysis. See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the domain name <geociites.com> is confusingly similar to Complainant’s GEOCITIES mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Respondent has failed to come forward with a Response. Therefore, the Panel is permitted to make reasonable inferences in favor of Complainant and accept Complainant’s allegations as true. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence); 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”).
Furthermore, based on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because Respondent never submitted a Response nor provided the Panel with evidence to suggest otherwise).
Respondent is using a domain name that is confusingly similar to Complainant’s mark in order to ensnare Internet users and direct them to a website that competes with Complainant’s goods and services. Respondent’s <copmusa.com> domain name utilizes a common typing error and thereby directs Internet users who mistype Complainant’s mark in the browser to Respondent’s website. As a result, Internet users looking for Complainant will be confused as to the source, sponsorship and affiliation of Respondent’s website. This type of use is not considered to be in connection with 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 N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain name to divert Internet users to its competing website); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, it's use of the names was not in connection with the offering of goods or services or any other fair use).
There is no evidence on record, and Respondent has not come forward with a Response to establish that it is commonly known as COPMUSA or <copmusa.com>. Therefore, there is no evidence to establish that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent is engaging in a practice called typosquatting. Respondent is diverting Internet users who mistype Complainant’s mark in the browser to Respondent’s own website for Respondent’s commercial gain. This practice is considered to be evidence of bad faith use pursuant to Policy ¶ 4(b)(iv). See e.g. Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com> and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to Complainant).
Furthermore, based on the fact that Respondent registered a domain name that is a misspelling of Complainant’s mark it can be inferred that Respondent was on notice of Complainant’s rights in the COMPUSA mark when it registered the disputed domain name. Registration of a domain name, despite knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse"); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby GRANTED.
Accordingly, it is Ordered that the domain name <copmusa.com> be TRANSFERRED from Respondent to Complainant.
Sandra Franklin, Panelist
Dated: October 18, 2002
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