Cabela's, Inc. v. Domain Proxies, LLC c/o Domain Proxies, LLC
Claim Number: FA0909001283231
Complainant is Cabela's,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cobelas.com>, registered with Dotregistrar.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 8, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 8, 2009.
On September 8, 2009, Dotregistrar confirmed by e-mail to the National Arbitration Forum that the <cobelas.com> domain name is registered with Dotregistrar and that Respondent is the current registrant of the name. Dotregistrar has verified that Respondent is bound by the Dotregistrar 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 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 6, 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@cobelas.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 12, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cobelas.com> domain name is confusingly similar to Complainant’s CABELAS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <cobelas.com> domain name.
3. Respondent registered and used the <cobelas.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cabela’s, Inc., is a mail-order, retail, and Internet outdoor outfitter. Complainant has sold its outdoor products at <cabelas.com> since 1998. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its CABELAS.COM mark (Reg. No. 2,247,977 issued May 25, 1999).
Respondent, Domain Proxies, LLC, registered the <cobelas.com> domain name on January 2, 2004. The disputed domain name resolves to a website featuring a commercial search engine and hyperlinks to Complainant and Complainant’s competitors in the outdoor products industry.
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 it is not necessary for Complainant to
register the mark in Respondent’s country,
Complainant contends Respondent’s <cobelas.com> domain name is confusingly similar to Complainant’s CABELAS.COM mark. The disputed domain name is a simple misspelling of Complainant’s mark; Respondent exchanges the letter “a” for the letter “o.” The Panel finds the misspelling of Complainant’s mark by one letter fails to adequately distinguish the disputed domain name from Complainant’s mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any
rights or legitimate interests in the <cobelas.com> domain
name. 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 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 Do
the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(“Failure of a respondent to come forward to [contest complainant’s
allegations] is tantamount to admitting the truth of complainant’s assertions
in this regard.”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Respondent uses the <cobelas.com> domain name to resolve to a website featuring a commercial search engine and hyperlinks to Complainant and Complainant’s competitors in the outdoor products industry. Respondent likely receives click-through fees from the commercial search engine and hyperlinks. The Panel finds Respondent use of the confusingly similar disputed domain is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair uses of the domain name under Policy ¶ 4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does 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 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)).
Respondent has offered no evidence, and there is no evidence in the record, suggesting that Respondent is commonly known by the <cobelas.com> domain name. Complainant asserts that Respondent is not authorized to use the CABELAS.COM mark. Complainant further asserts that Respondent is not sponsored or legitimately affiliated with Complainant in any way. The WHOIS information identifies Respondent as “Domain Proxies, LLC c/o Domain Proxies, LLC.” Therefore, the Panel finds that Respondent has not established rights or legitimate interests in the <cobelas.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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); 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 <cobelas.com>
domain name constitutes typosquatting.
The Panel finds that Respondent’s use of the disputed domain name, a
common misspelling of the CABELAS.COM 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
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges Respondent’s use of the <cobelas.com>
domain name is a part of a pattern
of bad faith use and registration.
Respondent has been a respondent in numerous UDRP proceedings in
which disputed domain names were transferred from Respondent to the
complainants in those cases. See
Citigroup, Inc. v. Domain Proxies, LLC, D2008-0951 (WIPO Aug. 17, 2008); see also Lillian Vernon Co. v. Domain Proxies, LLC, FA 1082414
(Nat. Arb. Forum Nov. 6, 2007). The
Panel finds this constitutes a pattern of bad faith registration and use of
domain names under Policy ¶ 4(b)(ii). See Westcoast
Contempo Fashions Ltd. v.
Previous panels have found a respondent’s use of a confusingly similar website featuring a search engine and competing hyperlinks constitutes a disruption of a complainant’s business. See 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); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names). Respondent’s <cobelas.com> domain name features a search engine and hyperlinks to Complainant and Complainant’s competitors in the outdoors product industry. The Panel finds Respondent’s use of the disputed domain name disrupts Complainant’s outdoors product business and constitutes bad faith registration and use under Policy ¶ 4(b)(iii).
The Panel infers Respondent receives click-through fees from the commercial search engine and hyperlinks featured on the resolving website. Internet users, interested in Complainant and Complainant’s outdoor products, may become confused as to Complainant’s affiliation and sponsorship of the disputed domain name, resolving website, and featured hyperlinks. The Panel finds Respondent’s use constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); 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 <cobelas.com> domain name, which is a common misspelling of Complainant’s CABELAS.COM mark. Therefore, the Panel finds Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
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 <cobelas.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 21, 2009
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