national arbitration forum

 

DECISION

 

Cabela's, Inc. v. Domain Contact 3

Claim Number: FA0905001264930

 

PARTIES

 

Complainant is Cabela's, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Domain Contact 3 (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

 

The domain names at issue are <cabeelas.com>, <cabelaas.com>, <ccabelas.com>, and <chabelas.com>, registered with Dotregistrar.

 

PANEL

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 26, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 27, 2009.

 

On May 27, 2009, Dotregistrar confirmed by e-mail to the National Arbitration Forum that the <cabeelas.com>, <cabelaas.com>, <ccabelas.com> and <chabelas.com> domain names are registered with Dotregistrar and that Respondent is the current registrant of the names.  Dotregistrar has verified that Respondent is bound by the Dotregistrar 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 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 June 19, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

 

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

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.

 

FINDINGS

 

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 United States and in over one hundred other countries.  Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CABELAS.COM mark (i.e., Reg. No. 2,247,977 issued May 25, 1999).

 

Respondent registered the disputed domains on or after July 23, 2003.  The <cabeelas.com> and <chabelas.com> domain names resolve to Complainant’s <cabelas.com> domain name website.  Respondent receives a fee for bringing Internet users to Complainant’s website through Complainant’s affiliate program.  The <cabelaas.com> domain name does not currently resolve to an active website and the <ccabelas.com> domain name resolves to a website featuring unrelated advertisements and a search engine.     

 

DISCUSSION

 

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.

 

Identical and/or Confusingly Similar

 

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 Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Metropolitan  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)).

 

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.

 

Rights or Legitimate Interests

 

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 Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).

 

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 Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003) (finding that registering a domain name which differs by one letter from the complainant’s commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliates program is not a bona fide offering of goods or services nor a noncommercial use of the domain name); see also Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by signing up for the complainant’s affiliate program upon registering the domain name, a misspelling of the complainant’s mark, the respondent intended to profit off the domain name at the complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)).

 

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 Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).

 

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 Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); 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 that Policy ¶ 4(a)(ii) has been satisfied. 

 

Registration and Use in Bad Faith

 

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 Auth. Mich., Inc. v. Skander, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use); see also Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program);  T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).  .

 

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 DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).

 

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.

 

DECISION

 

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.

 

Bruce E. Meyerson, Panelist

Dated:  June 30, 2009

 

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