LD Products, Inc. v. Dealwave
Claim Number: FA0906001265963
Complainant is LD
Products, Inc. (“Complainant”), represented by Matthew M. Thomson, of Kronenberger Burgoyne, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com>, registered with Fabulous.com Pty Ltd.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 1, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 2, 2009.
On June 2, 2009, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names are registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the names. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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@4injkets.com, postmaster@4inkkjets.com, postmaster@4inkjjets.com, postmaster@4inkjetts.com, postmaster@4inkets.com, and postmaster@4ikjets.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 30, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names are confusingly similar to Complainant’s 4INKJETS mark.
2. Respondent does not have any rights or legitimate interests in the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names.
3. Respondent registered and used the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LD Products, Inc., is an Internet retailer for printer supplies and accessories. Complainant has used the 4INKJETS mark since 1999. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its 4INKJETS mark (Reg. No. 2,998,115 registered September 20, 2005).
Respondent registered the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names on August 1, 2005. The disputed domain names each resolve to websites with a search engine and advertisements for third-party websites either unrelated to, or competing 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 Complainant has established rights under
Policy ¶ 4(a)(i) in the 4INKJETS mark through its
registration of the mark with the USPTO.
See Reebok Int’l Ltd. v.
Respondent’s <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names are confusingly similar to Complainant’s 4INKJETS mark because Respondent’s disputed domain names are misspellings of Complainant’s mark that combine the addition, omission or transposition of letters in Complainant’s mark with the addition of the generic top-level domain name “.com.” The Panel finds misspelling of Complainant’s mark does not distinguish the disputed domain names from the mark under Policy ¶ 4(a)(i). The Panel further finds that the addition of a top-level domain name is irrelevant in a Policy ¶ 4(a)(i) analysis. Thus, the Panel finds the disputed domain names are confusingly similar to Complainant’s 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); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.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 names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Respondent disputed domain names resolve to websites
featuring a search-engine and advertisements. Some of the advertisements are
unrelated to Complainant’s business and some relate to Complainant’s
competitors. Respondent presumably
receives advertising revenues from its use of the disputed domain names. The Panel finds that these uses are not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or legitimate noncommercial or
fair use of the domain names under Policy ¶ 4(c)(iii). See Jerry Damson, Inc. v.
There is no evidence in the record, and Respondent has offered no evidence, suggesting that Respondent is commonly known by the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names. Complainant asserts that Respondent is not authorized to use the 4INKJETS mark. The WHOIS information identifies Respondent as “Dealwave.” Therefore, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); 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 <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>,
<4inkjetts.com>, <4inkets.com>, and <4ikjets.com>
domain names contain misspelled versions of Complainant’s 4INKJETS mark, which
constitutes typosquatting. The Panel
finds that Respondent’s use of disputed domain names that are common
misspellings of the 4INKJETS mark to redirect Internet users seeking
Complainant’s website is further evidence Respondent does not have rights or
legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). See 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’”); 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 Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names to resolve to websites featuring a search engine and advertisements relating to Complainant’s competitors and unrelated third parties. The Panel finds these uses of disputed domain names that are confusingly similar to Complainant’s 4INKJETS mark constitute disruption and thus bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
The Panel infers Respondent receives commercial benefit through the use of the disputed domain names to redirect Internet users, interested in Complainant, to third-party websites through the search engine and advertisements. Therefore, the Panel finds Respondent’s use of the disputed domain names constitute bad faith registration and use under 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 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)).
Furthermore, Respondent has engaged in typosquatting through its use of the <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names, which are common misspellings of Complainant’s 4INKJETS mark. Therefore, the Panel finds Respondent’s engagement in typosquatting constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under 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 <4injkets.com>, <4inkkjets.com>, <4inkjjets.com>, <4inkjetts.com>, <4inkets.com>, and <4ikjets.com> domain names be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: July 14, 2009
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