AutoZone Parts, Inc. v. Auto Info Links
Claim Number: FA0907001274397
Complainant is AutoZone
Parts, Inc. (“Complainant”), represented by Kitty Bina, of Alston & Bird, LLP, Georgia,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <autozpne.com>, registered with Korea Information Certificate Authority, Inc. d/b/a Domainca.com.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 31, 2009, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 21, 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@autozpne.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <autozpne.com> domain name is confusingly similar to Complainant’s AUTOZONE mark.
2. Respondent does not have any rights or legitimate interests in the <autozpne.com> domain name.
3. Respondent registered and used the <autozpne.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AutoZone Parts, Inc., is the owner of the
AUTOZONE mark, registered with the United States Patent and Trademark Office
(“USPTO”) (e.g., Reg. No. 1,496,638 issued
Respondent, Auto Info Links, registered the <autozpne.com>
domain name on
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 is satisfied with Complainant’s showing of rights
in the AUTOZONE mark through its registration of the mark with the USPTO (Reg.
No. 1,496,638 issued July 19, 1988) and the SKTO (Reg. No. 450,013,402 issued
Complainant contends that Respondent’s <autozpne.com>
domain name is confusingly similar to its AUTOZONE mark under Policy ¶
4(a)(i). The disputed domain name
incorporates the distinctive portion of Complainant’s AUTOZONE mark with the
mere substitution of the letter “p” for the letter “o” and the affixation of
the generic top-level domain “.com.” The
Panel concludes that these alterations fail to sufficiently distinguish the
disputed domain name from Complainant’s AUTOZONE mark. Thus, the Panel finds that Respondent’s <autozpne.com>
domain name is confusingly similar to Complainant’s AUTOZONE mark under Policy
¶ 4(a)(i). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat.
Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶
4(a)(i).
Complainant
alleges that Respondent does not have rights to, or legitimate interests in,
the <autozpne.com> domain name. Once Complainant makes out a
prima facie case in support of its allegations, the burden shifts to
Respondent to prove that it does nonetheless have such rights or legitimate
interests within the contemplation of Policy ¶ 4(a)(ii). See Intel Corp. v. Macare, FA
660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that a “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.”). The
Panel finds that Complainant has made out a sufficient prima facie
case in this proceeding. Because of Respondent’s failure to respond to
the Complaint, the Panel may presume that Respondent does not have rights to or
legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO
Respondent’s disputed domain name resolves to a website displaying click-through advertisements that further resolve to the websites of Complainant’s competitors in the automotive parts industry, including JC Whitney, Parts Train, Auto Parts Warehouse, and Parts Network. The Panel presumes that Respondent is profiting through the generation of click-through fees. Thus, the Panel finds that Respondent is not using the <autozpne.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively. See Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
Complainant contends that Respondent is not commonly known by the <autozpne.com> domain name and has not been authorized to use its AUTOZONE mark. Moreover, the pertinent WHOIS information identifies the registrant as “Auto Info Links.” While this information may indicate a connection between the disputed domain name and Respondent, there is no evidence in the record to substantiate this claim. Thus, the Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Skyline Displays, Inc. v. Hangzhou Skyi Display Equip. Co., FA 187706 (Nat. Arb. Forum Oct. 14, 2003) (“Despite the fact that Respondent lists itself as Hangzhou Skyi Display Equipment Co., Ltd. in its WHOIS contact information, there is no evidence presented to the Panel showing that Respondent is commonly known by the <skyidisplay.com> domain name prior to registering the domain name.”); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name).
Moreover, Complainant contends that Respondent has engaged
in the practice of typosquatting.
Respondent is taking advantage of Internet users attempting to reach
Complainant but mistakenly misspelling Complainant’s AUTOZONE mark by typing
the letter “p” instead of the letter “o,” which are adjacent keys on the
keyboard. The Panel finds that
Respondent’s engagement in the practice of typosquatting is evidence that
Respondent lacks rights and legitimate interests in the <autozpne.com>
domain name under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that
a respondent lacked rights and legitimate interests in 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
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent is using the disputed domain name to attract Internet users to Respondent’s website containing commercial links to the websites of Complainant’s competitors. The Panel finds that Respondent’s misappropriation of a misspelled version of Complainant’s AUTOZONE mark to divert Internet users likely disrupts Complainant’s business and thus, constitutes bad faith registration and use of the disputed domain 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 links to the websites of a complainant’s commercial competitors represents bad faith registration and use of the domain 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 a disputed domain name to operate a commercial search engine with links to a complainant’s business competitors).
Complainant
alleges that Respondent is intentionally attempting to attract unknowing
Internet users to Respondent’s <autozpne.com> domain name, which
was registered on
Complainant
further contends that typosquatting is itself evidence of bad faith
registration and use under Policy ¶ 4(a)(iii). The Panel agrees and finds that Respondent’s <autozpne.com>
domain name is merely a typosquatted version of Complainant’s AUTOZONE mark and
thus, Respondent’s conduct constitutes bad faith registration and use of the
disputed domain name under Policy ¶ 4(a)(iii).
See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528
(Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <autozpne.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 6, 2009
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