Cabela's, Inc. v. Navigation
Catalyst Systems, Inc
Claim Number: FA0909001283152
PARTIES
Complainant is Cabela's, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cabebas.com>, <cabelal.com>, <cabelaos.com>, <cabeloas.com>, <cabrelas.com>, <cacelas.com>, <caebelas.com>, and <wwwlcabelas.com>,
registered with Basic Fusion, Inc.
PANEL
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.
Dawn Osborne as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on September 4, 2009; the
National Arbitration Forum received a hard copy of the Complaint on September 8, 2009.
On September 8, 2009, Basic Fusion, Inc. confirmed by e-mail to the
National Arbitration Forum that the <cabebas.com>, <cabelal.com>, <cabelaos.com>, <cabeloas.com>, <cabrelas.com>, <cacelas.com>, <caebelas.com>, and <wwwlcabelas.com> domain
names are registered with Basic Fusion, Inc.
and that the Respondent is the current registrant of the names. Basic Fusion,
Inc. has verified that Respondent is bound by the Basic Fusion, 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 September 11, 2009, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of October 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 postmaster@cabebas.com, postmaster@cabelal.com, postmaster@cabelaos.com, postmaster@cabeloas.com,
postmaster@cabrelas.com, postmaster@cacelas.com, postmaster@caebelas.com, and postmaster@wwwlcabelas.com
by e-mail.
A Response was received and determined to be complete on October 2, 2009, however, it was deemed deficient pursuant
to ICANN Rule 5 because it was received in hard copy one day after the response
deadline.
An Additional Submission was received from the Complainant on October 7,
2009 in compliance with Supplemental Rule 7.
On 8 October pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Dawn Osborne as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant is the largest mail order, Internet and retail outdoor
outfitter in the world. The complainant produces 100 catalogs a year. Based in
The Complainant’s web site has been at <cabelas.com> since 1998
and was ranked no. 1 in the outdoor retailer industry in 2006. The Complainant has spent hundreds of
thousands of dollars in advertising spend.
The Complainant owns
The Domain Names are confusingly similar to Complainant’s marks as they
differ by only the addition of one letter, the removal of one letter, the
substitution of one incorrect letter or non distinct additions.
The Respondent has no rights and legitimate interests in the Domain
Names. It is not commonly known by the Domain Names. He is not permitted to use
the Domain Names by the Complainant. He is not using the Domain Names to
provide bona fide goods or services or using for legitimate non commercial use.
He is using some of the names as link farms for commercial benefit. Its
registration of the Domain Names was a long time after the Complainant
registered their marks and used in commerce.
The Respondent has registered and used in bad faith. The Respondent’s
behaviour is classic typosquatting. The Respondent is a serial typosquatter as
revealed by searches of the NAF and WIPO databases and other registrations the
Respondent owns. Some of the web sites reached by the Domain Names spell the
Complainant’s name correctly showing the Complainant to be the target of the
actions of the Respondent.
B. Respondent
Respondent lacks bad faith and was not aware of the Complainant.
Respondent has offered a voluntary transfer of the Domain Names. Respondent
requests a transfer of the Domain Names without further findings. It is
inappropriate to issue any kind of decision other than the transfer of the
Domain Names.
C. Additional Submissions
The Complainant does not believe that the
Respondent was not aware of the Complainant when it registered the Domain Names
as it points the names to site of competitors of the Complainant and due to the
Complainant’s extensive reputation. The Complainant is a serial typosquatter
seeking to avoid an adverse finding to try to present a reputation as a
legitimate company rather than a blatant cybersquatter. The Complainant opposes
the Respondent’s request for a decision without findings.
FINDINGS
The Complainant owns US registered trade
marks for CABELA’S, CABELAS.COM, CABELAS in the fields of retail services and
outdoor gear and has been using in commerce since 1961.
The Respondent registered the Domain Names
between 2004 and 2007 and pointed some of them to link farms for third party
web sites.
DISCUSSION
The Response was only submitted in electronic copy before the deadline
for the Response. The hard copy arrived after the deadline. Nevertheless the
Panelist in its discretion has considered the Respondent’s submissions in full.
This is in the interests of a fair decision and is not prejudicial to the
Complainant.
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.
The Panel’s view is that the Complainant has shown it has rights in the
name CABELAS and, as the Respondent has
engaged in serial typosquatting employing domain names to point to third party
link farms, the Respondent has no legitimate interest in the Domain Name and is
currently holding the Domain Name in bad faith. The Respondent has given no
reasons why typosquatting versions of the CABELAS name was adopted and its
assertions that it was not aware of the Conplainant is not believed by the
panelist given the number of typosquatting names adopted and the use made of
them. The Domain Names were adopted in bad faith. The panelist sees no reason
not to state its basic finding on these issues. Indeed these basic findings
give it the jurisdiction to order transfer of the Domain Names under the
Policy.
However, in circumstances such as this where the Respondent has not
contested the transfer of the Domain Name and agrees to transfer the Domain
Name to the Complainant, the Panel
may decide to forego the lengthy traditional UDRP analysis and order an
immediate transfer of the <cabebas.com>, <cabelal.com>, <cabelaos.com>,
<cabeloas.com>, <cabrelas.com>, <cacelas.com>, <caebelas.com>, and <wwwlcabelas.com> domain names. See Boehringer
Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb.
Forum
DECISION
Having established all three elements required under the ICANN Policy
and having reviewed the Complainant’s request for relief and the Respondent’s
consent to that relief with legal advice the Panel concludes that relief shall
be GRANTED.
Accordingly, it is Ordered that the Domain
Names be TRANSFERRED from
Respondent to Complainant.
Dawn Osborne, Palmer Biggs Legal, Panelist
Dated: 22 October 2009
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