Cabela's, Inc. v. Domain Contact 3
Claim Number: FA0905001264930
Complainant is Cabela's,
Inc. (“Complainant”), represented by
CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <cabeelas.com>, <cabelaas.com>, <ccabelas.com>, and <chabelas.com>, registered with Dotregistrar.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On May 28, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 17, 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@cabeelas.com, postmaster@cabelaas.com, postmaster@ccabelas.com, and postmaster@chabelas.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <cabeelas.com>, <cabelaas.com>, <ccabelas.com> and <chabelas.com> domain names are confusingly similar to Complainant’s CABELAS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <cabeelas.com>, <cabelaas.com>, <ccabelas.com> and <chabelas.com> domain names.
3. Respondent registered and used the <cabeelas.com>, <cabelaas.com>, <ccabelas.com> and <chabelas.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is one of the leading outfitters of hunting,
fishing, and outdoor gear. Complainant
began operations in 1961, and now sells its products in every state in the
Respondent registered the disputed domains on or after
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 Complainant has established rights under
Policy ¶ 4(a)(i) in the CABELAS.COM mark through its
registration of the mark with the USPTO.
See Microsoft Corp. v. Burkes, FA 652743
(Nat. Arb. Forum
Respondent’s <cabeelas.com>, <cabelaas.com>, <ccabelas.com> and <chabelas.com> domain names are confusingly similar to Complainant’s CABELAS.COM mark because Respondent’s domain names are simply misspellings of Complainant’s mark. The Panel finds the misspellings of Complainant’s mark do not distinguish the disputed domain names from the mark under Policy ¶ 4(a)(i). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (finding that the respondent’s disputed domain names were confusingly similar to the complainant’s mark because the disputed domain names were common misspellings of the mark involving keys that were adjacent to the current keys comprising the complainant’s mark); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any
rights or legitimate interests in the <cabeelas.com>, <cabelaas.com>, <ccabelas.com>
and <chabelas.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts
to Respondent to prove that it does have rights or legitimate interests
pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a
sufficient prima facie case. Due to Respondent’s failure to respond to the
Complaint, the Panel may assume that Respondent does not have rights or
legitimate interests in the disputed domain name. However, the Panel will examine the record to
determine whether Respondent has rights or legitimate interests in the disputed
domain name under Policy ¶ 4(c). See Do
the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Respondent is using the <cabeelas.com>
and <chabelas.com> domain
names to redirect Internet users back to Complainant’s website for the commercial
gain of Respondent through Complainant’s affiliate program. Respondent’s use of domain names that are
confusingly similar to the CABELAS.COM mark to redirect Internet users for this
purpose is not a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use of the domain names under Policy ¶
4(c)(iii). See Sports
Respondent also uses the <ccabelas.com> domain name to operate a website featuring a search-engine and unrelated advertisements presumably for the profit of Respondent. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair uses of the domain name under Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant).
Finally, Respondent does not actively use the <cabelaas.com> domain name to resolve to a website. The Panel finds that this use is also not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or legitimate noncommercial or fair uses of the domain name under Policy ¶ 4(c)(iii). See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the respondent lacked rights or legitimate interests in a confusingly similar domain name that it had not made demonstrable preparations to use since its registration seven months prior to the complaint); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent has offered no evidence, and there is no evidence
in the record, suggesting that Respondent is commonly known by the <cabeelas.com>, <cabelaas.com>, <ccabelas.com>
and <chabelas.com> domain names. Complainant asserts that Respondent is not
authorized to use the CABELAS.COM mark.
Complainant further asserts that Respondent is not sponsored or
legitimately affiliated with Complainant in any way. The WHOIS information identifies Respondent
as “Domain Contact 3.” Therefore, the
Panel finds that Respondent has not established rights or legitimate interests
in the <cabeelas.com>,
< cabelaas.com>, <ccabelas.com> and
<chabelas.com> domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
In addition, Respondent’s use of the <cabeelas.com>, <cabelaas.com>, <ccabelas.com>
and <chabelas.com> domain names constitutes
typosquatting. The Panel finds that
Respondent’s use of domain names that are common misspellings of the
CABELAS.COM mark to redirect Internet users seeking Complainant’s website fails
to establish rights or interests pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <cabeelas.com>
and <chabelas.com> domain
names to redirect Internet users back to Complainant’s website for Respondent’s
commercial gain through Complainant’s affiliate program. Respondent also is using the <ccabelas.com> domain name to
operate a website featuring a search-engine and advertisements presumably for
the profit of Respondent. Thus, the
Panel finds Respondent’s uses of the <cabeelas.com>, <ccabelas.com> and
<chabelas.com> disputed domain names constitute bad faith registration
and use under Policy ¶ 4(b)(iv). See Sports
Respondent has failed to make an active use of the <cabelaas.com> domain name. The Panel finds that a failure to make an
active use constitutes bad faith registration and use pursuant to 4(a)(iii). See American
Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s
failure to make active use of its domain name in the three months after its
registration indicated that the respondent registered the disputed domain name
in bad faith); see also
Furthermore, Respondent has engaged in typosquatting through its use of the <cabeelas.com>, <cabelaas.com>, <ccabelas.com>, and <chabelas.com> domain names, which are common misspellings of Complainant’s CABELAS.COM mark. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use 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).”); National Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“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. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
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 <cabeelas.com>, <cabelaas.com>, <ccabelas.com> and <chabelas.com> domain names be TRANSFERRED from Respondent to Complainant.
Dated: June 30, 2009
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