Provide Commerce, Inc. v. domainnamesbyproxy.com Inc.
Claim Number: FA0903001251556
Complainant is Provide Commerce, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <profliwers.com>, <proflowets.com>, and <proflowrrs.com>, registered with Godaddy.com, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 10, 2009; the National Arbitration Forum received a hard copy of the Complaint on March 10, 2009.
On March 10, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <profliwers.com>, <proflowets.com>, and <proflowrrs.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 March 13, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 2, 2009 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@profliwers.com, postmaster@proflowets.com, and postmaster@proflowrrs.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 9, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <profliwers.com>, <proflowets.com>, and <proflowrrs.com> domain names are confusingly similar to Complainant’s PROFLOWERS mark.
2. Respondent does not have any rights or legitimate interests in the <profliwers.com>, <proflowets.com>, and <proflowrrs.com> domain names.
3. Respondent registered and used the <profliwers.com>, <proflowets.com>, and <proflowrrs.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Provide Commerce, Inc., registered its PROFLOWERS mark with the United States Patent and Trademark Office (“USPTO”) on August 14, 2001 (Reg. No. 2,476,976). Complainant uses its PROFLOWERS mark in connection with its sale of fresh flowers.
Respondent began registering the disputed domain names on May 20, 2008. Respondent’s disputed domain names resolve to websites that display links to third-party websites, some of which compete with Complainant’s 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:
(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.
Complainant has provided evidence of the registration of its
PROFLOWERS mark with the USPTO, which the Panel finds sufficiently establishes
Complainant’s rights in its mark under 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
Respondent’s <profliwers.com>, <proflowets.com>,
and <proflowrrs.com> domain names each contain a
misspelling of Complainant’s PROFLOWERS mark with the substitution of a letter
and the addition of the generic top-level domain “.com.” The Panel finds these alterations do not
distinguish Respondent’s disputed domain names from Complainant’s PROFLOWERS
mark. Therefore, the Panel finds the
disputed domain names are confusingly similar to Complainant’s mark under
Policy ¶ 4(a)(i). See
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights or legitimate interests in the disputed domain names. 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 names. The Panel finds Complainant has presented an adequate prima facie case to support its allegations 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 names. The Panel, however, will examine the record and determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). 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.”).
Respondent’s disputed domain names resolve to websites that display links to third-party websites, some of which compete with Complainant’s fresh flower business. The Panel finds this use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial fair use pursuant to Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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 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).
The WHOIS information lists Respondent as
“domainnamesbyproxy.com Inc.” and the record does not indicate Respondent has
ever been commonly known by the disputed domain names. Therefore, the Panel finds Respondent is not
commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See
Furthermore, Complainant contends Respondent has engaged in typosquatting by registering disputed domain names that contain common typographical errors, namely the substitution of letters in Complainant’s PROFLOWERS mark. The Panel finds Respondent has engaged in typosquatting, and that Respondent therefore lacks rights and legitimate interest in the disputed domain names under Policy ¶ 4(a)(ii). 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain names to provide links to third-party websites that compete with Complainant’s business. The Panel finds this constitutes disruption of Complainant’s business, which is evidence of bad faith registration and use under 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, the Panel presumes Respondent is receiving compensation in the form of click-through revenues for its use of the disputed domain names. Therefore, the Panel finds Respondent is attempting to profit from the goodwill Complainant has established in its PROFLOWERS mark, which is evidence of bad faith registration and use under 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 Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
Additionally, Complainant maintains Respondent has engaged in typosquatting. The Panel agrees, and finds Respondent’s attempt to capitalize from common typographical errors is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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)); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to 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 <profliwers.com>, <proflowets.com>, and <proflowrrs.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: April 23, 2009
National
Arbitration Forum
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