NATIONAL ARBITRATION FORUM

DECISION

Improvement Direct, Inc. v. Eric Strand

Claim Number: FA0905001264963

PARTIES

Complainant is Improvement Direct, Inc. (“Complainant”), represented by Brody Stout of CitizenHawk, Inc.[i], California, USA.  Respondent is Eric Strand, pro se (“Respondent”), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The Domain Names at issue are <aucetdirect.com>, <faaucetdirect.com>, <fajcetdirect.com>, <fauccetdirect.com>, <faucedtirect.com>, <fauceetdirect.com>, <faucefdirect.com>, <faucetddirect.com>, <faucetdierct.com>, <faucetdircet.com>, <faucetdireect.com>, <faucetdiretc.com>, <faucetdirrect.com>, <faucetdjrect.com>, <faucetdrect.com>, <faucetdriect.com>, <faucetidrect.com>, <faucetirect.com>, <faucstdirect.com>, <faucwtdirect.com>, <fauectdirect.com>, <fauetdirect.com>, <fauvetdirect.com>, <ffaucetdirect.com>, and <wfaucetdirect.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.

 

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.

 

M. Kelly Tillery, Esquire as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 27, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 28, 2009.

 

On June 1, 2009, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <aucetdirect.com>, <faaucetdirect.com>, <fajcetdirect.com>, <fauccetdirect.com>, <faucedtirect.com>, <fauceetdirect.com>, <faucefdirect.com>, <faucetddirect.com>, <faucetdierct.com>, <faucetdircet.com>, <faucetdireect.com>, <faucetdiretc.com>, <faucetdirrect.com>, <faucetdjrect.com>, <faucetdrect.com>, <faucetdriect.com>, <faucetidrect.com>, <faucetirect.com>, <faucstdirect.com>, <faucwtdirect.com>, <fauectdirect.com>, <fauetdirect.com>, <fauvetdirect.com>, <ffaucetdirect.com>, and <wfaucetdirect.com> Domain Names are registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide and that the Respondent is the current registrant of the name.  Melbourne It, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne It, Ltd. d/b/a Internet Names Worldwide 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 June 4, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 24, 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@aucetdirect.com, postmaster@faaucetdirect.com, postmaster@fajcetdirect.com, postmaster@fauccetdirect.com, postmaster@faucedtirect.com, postmaster@fauceetdirect.com, postmaster@faucefdirect.com, postmaster@faucetddirect.com, postmaster@faucetdierct.com, postmaster@faucetdircet.com, postmaster@faucetdireect.com, postmaster@faucetdiretc.com, postmaster@faucetdirrect.com, postmaster@faucetdjrect.com, postmaster@faucetdrect.com, postmaster@faucetdriect.com, postmaster@faucetidrect.com, postmaster@faucetirect.com, postmaster@faucstdirect.com, postmaster@faucwtdirect.com, postmaster@fauectdirect.com, postmaster@fauetdirect.com, postmaster@fauvetdirect.com, postmaster@ffaucetdirect.com, and postmaster@wfaucetdirect.com by e-mail.

 

A timely Response was received on June 8, 2009.  Because the Response was not properly served on the other party and was not received in hard copy, the National Arbitration Forum does not consider this Response to be in compliance with ICANN Rule 5.

 

On July 1, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed M. Kelly Tillery, Esquire as Panelist.

 

RELIEF SOUGHT

Complainant requests that the Domain Names be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant
Complaint contends that:

 

1)      it was formerly known as FaucetDirect, Inc. and changed its name to Improvement Direct, Inc. in September, 2004;

2)      <faucetdirect.com> was the first website it created and is one of its 15+ Network Stores which are among the online category leaders in plumbing, lighting and door hardware;

3)      it has continuously used its Mark, FaucetDirect, since May of 2000 in connection with online retail services featuring plumbing fixtures, plumbing accessories and bathroom accessories;

4)      it owns the Mark for which it has obtained a Federal Trademark Registration;

5)      it has spent hundreds of thousands of dollars in advertisement and promotion of the Mark in media and on the Internet and thus owns the exclusive right to use the Mark in connection with online retail services featuring plumbing fixtures, plumbing accessories and bathroom accessories;

6)      the 25 Domain Names are confusingly similar to Complainant's Mark because they differ by only a single character from Complainant's Mark, or because they differ by only the juxtaposition of two characters when compared to Complainant's Mark;

7)      the 25 Domain Names are classic examples of "typosquatting" designed to take advantage of Internet users' typographical errors, which means the names must be confusingly similar by design;

8)      Respondent has no rights or legitimate interests in respect of the 25 Domain Names for the following reasons:

a)      Respondent has not been commonly known by any of the 25 Domain Names and Complainant has not "licensed, authorized, or permitted Respondent to register any Domain Name incorporating Complainant's Mark";

b)      Respondent is not sponsored by or legitimately affiliated with Complainant in any way;

c)      Complainant has not given Respondent permission to use Complainant's Mark in any domain name;

d)      Respondent is using (some or all of) the 25 Domain Names to redirect Internet users to websites operated by Complainant's competitors. Respondent is not using the Domain Names to provide a bona fide offering of goods or services as allowed under Policy, nor a legitimate noncommercial or fair use Respondent is causing confusion amongst consumers and tarnishing Complainant's good name in the marketplace;

e)      The earliest date on which Respondent registered the 25 Domain Names was June 25, 2008, which is significantly after Complainant's registration of FAUCETDIRECT.COM on May 28, 2000;

f)        The earliest date on which Respondent registered the 25 Domain Names was June 25, 2008, which is significantly after Complainant's registration of their Mark with the USPTO;

g)      The earliest date on which Respondent registered the Domain Names was June 25, 2008, which is significantly after Complainant's First Use In Commerce.

9)      The 25 Domain Names should be considered as having been registered and being used in bad faith for the following reasons:

a)      Respondent's typosquatting behavior is, in and of itself, evidence of bad faith;

b)      Respondent has caused the websites reachable by (some or all of) the 25 Domain Names to display content and/or keywords directly related to the Complainant’s business.

 

B. Respondent

Respondent contends that:

 

1)         he is CEO of Designer Plumbing Outlet DPO;

2)         the domains in question were to renew this month, but he will not renew or dispute this proceeding.

 

FINDINGS

(1)   Complainant has met its burden to prove by a preponderance of the relevant, admissible evidence that Respondent’s Domain Names are confusingly similar to a trademark in which Complainant has rights.

(2)   Complainant has met its burden to prove by a preponderance of the relevant, admissible evidence that Respondent has no rights or legitimate interest in respect of the Domain Names.

(3)   Complainant has met its burden to prove by a preponderance of the relevant, admissible evidence that Respondent’s Domain Names have been registered and are being used in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

 

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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2)   the 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.

 

Procedural Status

 

Respondent has provided a Response deemed to be deficient by the National Arbitration Forum because a hard copy of the Response was not received before the Response deadline and the other party was not properly served.  The Panel may decide whether or not to consider Respondent’s submission, if so, the amount of weight to give to the Response, because it is not in compliance with ICANN Rule 5.  See Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist); Strum v. Nordic Net Exch. AB, FA 102843 (Nat. Arb. Forum Feb. 21, 2002) (“[R]uling a Response inadmissible because of formal deficiencies would be an extreme remedy not consistent with the basic principles of due process. . ."); J.W. Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where the respondent submitted a timely response electronically, but failed to submit a hard copy of the response on time, “[t]he Panel is of the view that given the technical nature of the breach and the need to resolve the real dispute between the parties that this submission should be allowed and given due weight”).

 

This Panel will consider Respondent’s submission in the interest of due process and because Respondent does not dispute Complainant’s Complaint. 

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has established rights under Policy ¶ 4(a)(i) in the FAUCETDIRECT mark via its registration of the mark with the USPTO (Reg. No. 2,771,621 issued Oct. 7, 2003).  See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that complainant established rights in marks by registering the marks with the USPTO); Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (the complainant established rights in mark through registration of mark with USPTO).

 

Complainant asserts that all 25 Domain Names involved in this case are misspellings of Complainant’s FAUCETDIRECT mark followed by the generic top-level domain (gTLD) “.com.”  The addition of a gTLD is irrelevant to an analysis under Policy ¶ 4(a)(i). Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (top level of domain name such as “.net” or “.com” does not affect domain name for purpose of determining whether identical or confusingly similar).  The Domain Names are made up of errors in Complainant’s FAUCETDIRECT mark in one of four ways: (1) the addition of one extra character; (2) the removal of one character; (3) the substitution of one character with another; or (4) the juxtaposition of two characters of Complainant’s mark. The Panel finds that the Domain Names are confusingly similar to Complainant’s FAUCETDIRECT mark under Policy ¶ 4(a)(i).  See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (respondent’s disputed Domain Names confusingly similar to complainant’s mark because common misspellings of the mark involving keys that adjacent to current keys comprising complainant’s mark); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (a domain name which differs by only one letter from trademark has greater tendency to be confusingly similar to trademark where trademark is highly distinctive).

 

Respondent does not dispute that Complainant has proven the required elements of Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the 25 Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See HannaBarbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (the complainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to respondent to show it does have rights or legitimate interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject Domain Names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject Domain Names.”).

 

Complainant asserts it has not granted Respondent license to use its FAUCETDIRECT mark.  The WHOIS information associated with the 25 Domain Names lists Respondent as “Eric Strand.”  Respondent has not established rights or legitimate interests in the disputed Domain Names under Policy ¶ 4(c)(ii). See 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); see also 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).

 

Complainant states that Respondent is using the 25 Domain Names to redirect Internet users to a website of a direct competitor of Complainant.  This use is not a bona fide offering of good or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).

 

Respondent’s registration and use is classic “typsquatting.”  Typosquatting occurs when one purposefully includes typographical errors in the domain name to divert Internet users who commit the typographical error of the domain name takes advantage of.  The 25 Domain Names take advantage of Internet users who mistype Complainant’s FAUCETDIRECT mark.  Respondent has engaged in typosquatting and that such typosquatting is further evidence that Respondent does not have rights or legitimate interests in any of the 25 Domain Names 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 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’”).

 

Respondent does not dispute that Complainant has proven the required elements of Policy ¶4(a)(ii).

 

Registration and Use in Bad Faith

 

Complainant argues that Respondent’s use of Complainant’s FAUCETDIRECT mark in the 25 Domain Names to redirect Internet users to the website of Complainant’s direct competitor suggests that Respondent registered the Domain Names intending to disrupt Complainant’s business.  This is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See S. Exposure v. S.  Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); 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).”).

 

The 25 Domain Names redirect Internet users to a website offering products in direct competition with Complainant.  Respondent is attempting to profit off of Complainant’s FAUCETDIRECT mark by directing Internet users to its own website. Because of the confusingly similar nature of the disputed Domain Names, Internet users are likely to become confused about Complainant’s involvement and affiliation with the resolving website. Respondent is attempting to profit from this confusion.  This use is evidence of bad faith registration and use under Policy ¶ 4(b)(iv).  See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)).

 

Respondent’s typosquatting is evidence that Respondent registered and is using the 25 Domain Names in bad faith pursuant to Policy ¶ 4(a)(iii). See Nat’l 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.”); see also 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).

 

Respondent does not dispute that Complainant has proven the elements of Policy 4(a)(iii).

 

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 <aucetdirect.com>, <faaucetdirect.com>, <fajcetdirect.com>, <fauccetdirect.com>, <faucedtirect.com>, <fauceetdirect.com>, <faucefdirect.com>, <faucetddirect.com>, <faucetdierct.com>, <faucetdircet.com>, <faucetdireect.com>, <faucetdiretc.com>, <faucetdirrect.com>, <faucetdjrect.com>, <faucetdrect.com>, <faucetdriect.com>, <faucetidrect.com>, <faucetirect.com>, <faucstdirect.com>, <faucwtdirect.com>, <fauectdirect.com>, <fauetdirect.com>, <fauvetdirect.com>, <ffaucetdirect.com>, and <wfaucetdirect.com> Domain Names be TRANSFERRED from Respondent to Complainant.

 

 

M. KELLY TILLERY, ESQUIRE, Panelist
Dated: July 14, 2009

 

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National Arbitration Forum






[i] There is no indication that Brody Stout is a lawyer or that Citizen Hawk, Inc. is a law firm, but the Complaint was filed by that person and corporation as “Authorized Representative” of Complainant and the National Arbitration Forum, in accord with its rules and practices, accepted same.  While this Panel is without authority to act in this regard, it is troubled by the filing of a legal complaint by a corporation through non-lawyer, for another, unrelated corporation.