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],
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
On
On
A
timely Response was received on
On
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
f)
The earliest date
on which Respondent registered the 25 Domain Names was
g)
The earliest date
on which Respondent registered the Domain Names was
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
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
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
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
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
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
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
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
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
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
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.