LTD Commodities, LLC v. Domain Administrator
Claim Number: FA0904001258914
Complainant is LTD Commodities, LLC (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <abcdidtributing.com> and <abcdistributions.com>, registered with Moniker Online Services, 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.
James A Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 22, 2009; the National Arbitration Forum received a hard copy of the Complaint on April 24, 2009.
On April 23, 2009, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <abcdidtributing.com> and <abcdistributions.com> domain names are registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the names. 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 April 30, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 20, 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@abcdidtributing.com and postmaster@abcdistributions.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 26, 2009 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A Crary 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 <abcdidtributing.com> and <abcdistributions.com> domain names are confusingly similar to Complainant’s ABC DISTRIBUTING mark.
2. Respondent does not have any rights or legitimate interests in the <abcdidtributing.com> and <abcdistributions.com> domain names.
3. Respondent registered and used the <abcdidtributing.com> and <abcdistributions.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LTD Commodities, LLC, provides retail and wholesale services to a wide range of clients. Complainant has a number of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the ABC DISTRIBUTING mark (i.e. Reg. No. 1,831,704 issued April 19, 1994).
Respondent registered the <abcdidtributing.com> domain name on October 15, 2003 and the <abcdistributions.com> domain name on September 4, 2002. Respondent’s disputed domain names resolve to websites displaying third-party links that compete with Complainant.
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.
The Panel finds that Complainant has established rights in
the ABC DISTRIBUTING mark for purposes of Policy ¶ 4(a)(i) through its
trademark registration with the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007)
(finding that a trademark registration adequately demonstrates a complainant’s
rights in a mark under Policy ¶ 4(a)(i)); see also
Complainant argues that
Respondent’s disputed domain names are confusingly similar to Complainant’s ABC
DISTRIBUTING mark pursuant to Policy ¶ 4(a)(i).
Respondent’s disputed domain names contain a misspelled or alternative
version of Complainant’s mark and add the generic top-level domain (“gTLD”)
“.com.” The Panel finds that a disputed
domain name that contains a misspelled or alternate version of a complainant’s
mark creates a confusing similarity between the disputed domain name and the
complainant’s mark. See 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 Victoria’s Secret v. Zuccarini,
FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words
and adding letters to words, a respondent does not create a distinct mark but
nevertheless renders the domain name confusingly similar to the complainant’s
marks). In addition, the Panel finds
that the addition of a gTLD is irrelevant in distinguishing a disputed domain
name from a registered mark. See Jerry
Damson, Inc. v.
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant implicitly alleges that Respondent lacks all rights and legitimate interests in the disputed domain names. If Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that rights and legitimate interests exist pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”).
Complainant implicitly contends that Respondent is neither
commonly known by nor licensed to register the disputed domain names.
Respondent’s WHOIS information identifies Respondent as “Domain
Administrator.” The Panel finds that
Respondent’s failure to respond to the Complaint and the WHOIS information
demonstrate that Respondent is not commonly known by the disputed domain
name. Therefore, pursuant to Policy ¶
4(c)(ii), Respondent lacks rights and legitimate interests in the disputed
domain name. 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).
Respondent is using the disputed domain names to display links
advertising third-party websites, some of which are in competition with
Complainant. The Panel infers that
Respondent is using the disputed domain names to earn click-through fees, and
thus finds that Respondent has not made 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 Wells Fargo & Co. v. Lin
Shun Shing, FA 205699 (Nat. Arb. Forum
Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a
website featuring pop-up advertisements and links to various third-party
websites is neither a bona fide offering of goods or services under
Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶
4(c)(iii) because the registrant presumably receives compensation for each
misdirected Internet user); see
also Coryn
Group, Inc. v. Media Insight, FA
198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not
using the domain names for a bona fide offering of goods or services nor
a legitimate noncommercial or fair use because the respondent used the names to
divert Internet users to a website that offered services that competed with
those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the disputed domain names to disrupt the business of Complainant by offering links to competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); 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).”).
In addition, Respondent is using the disputed domain names to intentionally divert
Internet users to the associated websites, which display third-party links to
competing websites. In cases such as
this, the Panel assumes that Respondent is collecting click-through fees and
attempting to profit by creating a likelihood of confusion between
Complainant’s mark and the disputed domain names. The Panel finds that Respondent’s use of the
disputed domain names is further evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See 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); 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).”).
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 relief shall be GRANTED.
Accordingly, it is Ordered that the <abcdidtributing.com> and <abcdistributions.com> domain names be TRANSFERRED from Respondent to Complainant.
James A Crary, Panelist
Dated: June 9, 2009
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