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DECISION

 

Lifetime Brands, Inc. v. Cosmos1 a/k/a NA NA c/o Andrey Vishnevskii

Claim Number: FA0907001272715

 

PARTIES

Complainant is Lifetime Brands, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Cosmos1 a/k/a NA NA c/o Andrey Vishnevskii (“Respondent”), Russia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <pfaltzgraf.com>, registered with Enom, Inc.

 

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.

 

Judge Ralph Yachnin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 8, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 9, 2009.

 

On July 8, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <pfaltzgraf.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name.  Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 July 13, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 3, 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@pfaltzgraf.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On August 5, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <pfaltzgraf.com> domain name is confusingly similar to Complainant’s PFALTZGRAFF mark.

 

2.      Respondent does not have any rights or legitimate interests in the <pfaltzgraf.com> domain name.

 

3.      Respondent registered and used the <pfaltzgraf.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Lifetime Brands, Inc., through its subsidiary, Pfaltzgraff Co., markets and sells various food preparation, tabletop, and home décor products.  Complainant has operated under the PFALTZGRAFF mark since 1811.  Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its PFALTZGRAFF mark (i.e., Reg. No. 73,482,119 issued May 25, 1985).

 

Respondent registered the <pfaltzgraf.com> domain name on May 28, 2000.  The disputed domain name resolves to a website featuring links to third parties, some of which are Complainant’s competitors.

 

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

 

Complainant holds trademark registrations for the PFALTZGRAFF mark with the USPTO.  The Panel finds Complainant has established rights in the PFALTZGRAFF mark under Policy ¶ 4(a)(i) through its multiple registrations with the USPTO (i.e., Reg. No. 73,482,119 issued May 25, 1985).  See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also 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.”).

 

Complainant contends that Respondent’s  <pfaltzgraf.com> domain name is confusingly similar to Complainant’s pfaltZgrafF mark.  The disputed domain name contains a common misspelling of Complainant’s mark, by subtracting the letter “f,” with the addition of the generic top-level domain “.com.”  The Panel finds that a common misspelling with the addition of a top-level domain fails to adequately distinguish the disputed domain name from Complainant’s PFALTZGRAFF mark.  Therefore, the Panel finds the <pfaltzgraf.com> domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of 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 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 <pfaltzgraf.com> domain name.  The burden shifts to Respondent to prove it does have rights or legitimate interests when Complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii).  The Panel finds Complainant made a sufficient prima facie case.  Respondent’s failure to respond to the Complaint allows the Panel to infer 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 Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed.  In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”).

 

Respondent uses the <pfaltzgraf.com> domain name to resolve to a website featuring links to third party websites, some of which relate to Complainant’s competitors.  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 use of the disputed domain name under Policy ¶ 4(c)(iii).  See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with 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)).

 

Complainant asserts that Respondent has never been authorized to use the PFALTZGRAFF mark.  Complainant further provides the WHOIS information which lists Respondent as “Andrey Vishnevskii.”  Respondent failed to provide evidence that is commonly known by the <pfaltzgraf.com> domain name.  Furthermore, the Panel fails to find evidence in the record suggesting that Respondent is commonly known by the disputed domain name.  Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under 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 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).

 

Moreover, Respondent’s use of the <pfaltzgraf.com> domain name constitutes typosquatting.  The Panel finds that Respondent’s use of a domain name that is a common misspelling of the Complainant’s PFALTZGRAFF 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 Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent registered the <pfaltzgraf.com> domain name on May 28, 2000.  The disputed domain name is confusingly similar to Complainant’s PFALTZGRAFF mark and resolves to a website featuring links to Complainant’s competitors and other third parties.  The Panel finds that this use of the disputed domain name constitutes a disruption of Complainant’s business, which is evidence of bad faith registration and use pursuant to 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 Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).

 

The Panel presumes Respondent receives click-through fees from the hyperlinks to Complainant’s competitors and third parties.  Respondent is using the confusingly similar disputed domain name to profit from Internet users’ confusion as to Complainant’s affiliation with the disputed domain name and resolving website.  The Panel finds Respondent’s use of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees.   Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); 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)).

 

Finally, Respondent’s <pfaltzgraf.com> domain name shows evidence of typosquatting through the use of a common misspelling of Complainant’s PFALTZGRAFF mark.  Therefore, the Panel finds Respondent’s use of typosquatting constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”); 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.).

 

The Panel finds Complainant has satisfied 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 <pfaltzgraf.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  August 19, 2009

 

 

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