Haas Outdoors, Inc. v.
Claim Number: FA0908001277431
Complainant is Haas Outdoors, Inc. (“Complainant”), represented by Bradford
C. Ray, of Watkins Ludlam Winter & Stennis, P.A.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mossyoakfurniture.com>, registered with Compana, LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 4, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 6, 2009.
On August 5, 2009, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <mossyoakfurniture.com> domain name is registered with Compana, LLC and that Respondent is the current registrant of the name. Compana, LLC has verified that Respondent is bound by the Compana, LLC 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 August 12, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 1, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 4, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <mossyoakfurniture.com> domain name is confusingly similar to Complainant’s MOSSY OAK mark.
2. Respondent does not have any rights or legitimate interests in the <mossyoakfurniture.com> domain name.
3. Respondent registered and used the <mossyoakfurniture.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Haas Outdoors, Inc., is one of the nation’s largest manufacturers and developers of camouflage clothing and accessories. Since 1986 Complainant has sold camouflage and other outdoor products under the MOSSY OAK mark. Complainant holds a registration of the MOSSY OAK mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,003,245 issued September 24, 1996).
Respondent registered the <mossyoakfurniture.com> domain name on June 9, 2005. The disputed domain name resolves to a website that displays hyperlinks to third-party websites, some of which are in direct competition with Complainant.
Respondent has been the respondent in other UDRP
proceedings, wherein Respondent was ordered to transfer the disputed domain
names to the respective complainants in those cases. See,
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 that Complainant has sufficiently
established rights in the MOSSY OAK mark under Policy ¶ 4(a)(i) through its
registration held with the USPTO (Reg. No.
2,003,245 issued September 24, 1996).
Respondent’s <mossyoakfurniture.com> domain name contains Complainant’s MOSSY OAK mark in its entirety, adds the generic term “furniture,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that none of these additions to Complainant’s mark sufficiently distinguish the disputed domain name from Complainant’s mark. Therefore, the Panel finds that the <mossyoakfurniture.com> domain name is confusingly similar to Complainant’s MOSSY OAK mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Google Inc. v. Xtraplus Corp., D2001-0125 (WIPO Apr. 16, 2001) (finding that the respondent’s domain names were confusingly similar to Complainant’s GOOGLE mark where the respondent merely added common terms such as “buy” or “gear” to the end); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant makes this showing, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
The WHOIS information for the <mossyoakfurniture.com> domain name lists “Texas International Property Associates - NA NA” as the registrant. Respondent has not provided any evidence to suggest that Policy ¶ 4(c)(ii) applies to Respondent in this case. Furthermore, Complainant has not authorized or licensed Respondent to use its MOSSY OAK mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent’s <mossyoakfurniture.com> domain name resolves to a website that features hyperlinks to various third-party websites, some which are in direct competition with Complainant. The Panel presumes that Respondent receives click-through fees for displaying these hyperlinks. Accordingly, the Panel finds that Respondent’s use of the disputed domain name is not 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 ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be 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)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant cites two previous UDRP proceedings in which
Respondent was the respondent in each of those proceedings and the panels
ordered the transfer of disputed domain names containing the marks of the
complainants. See, e.g.,
The <mossyoakfurniture.com> domain name,
which was registered on June 9, 2005, resolves to a website featuring
hyperlinks to third-party competing websites.
The Panel finds that Respondent’s use of the disputed domain name
disrupts Complainant’s business. The
Panel further finds that such a disruption caused by Respondent constitutes 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 Am. Airlines, Inc. v.
Moreover, Respondent is using the confusingly similar <mossyoakfurniture.com> domain name to presumably receive click-through fees. The Panel finds that Respondent’s use of the disputed domain name creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name. Therefore, the Panel finds that Respondent’s presumed commercial gain from this likelihood of confusion is evidence of 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 AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).
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 <mossyoakfurniture.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: September 17, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum