Stump Printing Company, Inc. v. Nonamy LLC c/o Nonamy Domain Privacy
Claim Number: FA0910001287224
Complainant is Stump
Printing Company, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com>, registered with Godaddy.com, Inc.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 1, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 2, 2009.
On October 1, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 October 6, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 26, 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@hindigz.com, postmaster@shidigz.com, postmaster@shimdigz.com, postmaster@shindgiz.com, postmaster@shindgz.com, postmaster@shindizg.com, postmaster@shinidgz.com, postmaster@shinigz.com, postmaster@shndigz.com, postmaster@shnidigz.com, postmaster@sihndigz.com, and postmaster@sindigz.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 30, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names are confusingly similar to Complainant’s SHINDIGZ mark.
2. Respondent does not have any rights or legitimate interests in the <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names.
3. Respondent registered and used the <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Stump Printing Company, Inc., markets and sells holiday and party decorations and supplies. Complainant sells its products through catalogs and its online website resolving from the <shindigz.com> domain name. Complainant operates under the SHINDIGZ mark. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its SHINDIGZ mark (e.g., Reg. No. 2,386,438 issued September 12, 2000).
Respondent registered the <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names on, or after August 2, 2004. The disputed domain names resolve to Complainant’s website through Complainant’s affiliate program.
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.
Complainant holds multiple trademark registrations with the USPTO for its SHINDIGZ mark (e.g., Reg. No. 2,386,438 issued September 12, 2000). The Panel finds trademark registrations with the USPTO are sufficient to establish rights in the SHINDIGZ mark pursuant to Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority).
Complainant contends Respondent’s <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names are confusingly similar to Complainant’s SHINDIGZ mark. The disputed domain names simply contain common misspellings of Complainant’s SHINDIGZ mark and add the generic top-level domain (“gTLD”) “.com.” The Panel finds common misspellings and the addition of a gTLD fail to adequately distinguish the disputed domain names from Complainant’s mark. See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (finding that the respondent’s disputed domain names were confusingly similar to the complainant’s mark because the disputed domain names were common misspellings of the mark involving keys that were adjacent to the current keys comprising the complainant’s mark); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); 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.”). Therefore, the Panel finds Respondent’s disputed domain names are confusingly similar to Complainant’s SHINDIGZ mark under Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any
rights or legitimate interests in the disputed domain names. 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 names. However, the Panel will examine the record to
determine whether Respondent has rights or legitimate interests in the disputed
domain names 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’s <hindigz.com>, <shidigz.com>, <shimdigz.com>,
<shindgiz.com>, <shindgz.com>, <shindizg.com>,
<shinidgz.com>, <shinigz.com>, <shndigz.com>,
<shnidigz.com>, <sihndigz.com>, and <sindigz.com>
domain names all resolve to Complainant’s website. The disputed domain names are connected to
Complainant’s affiliate program.
Respondent uses the confusingly similar disputed domain names to receive
affiliate fees from Complainant. The
Panel finds this use is not a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i) or legitimate
noncommercial or fair uses of the domain names under Policy ¶ 4(c)(iii). See
Sports
Respondent has offered no evidence, and there is no evidence in the record, suggesting that Respondent is commonly known by the disputed domain names. Complainant asserts that Respondent is not authorized to use the disputed domain names. The WHOIS information identifies Respondent as “Nonamy LLC c/o Nonamy Domain Privacy.” Therefore, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See 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); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Moreover, Respondent’s use of the <hindigz.com>, <shidigz.com>, <shimdigz.com>,
<shindgiz.com>, <shindgz.com>, <shindizg.com>,
<shinidgz.com>, <shinigz.com>, <shndigz.com>,
<shnidigz.com>, <sihndigz.com>, and <sindigz.com>
domain names constitutes typosquatting.
The Panel finds that Respondent’s use of domain names that are common
misspellings of the SHINDIGZ 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 Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges Respondent’s use of the <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names are a part of a pattern of bad faith registration. Previous panels have held that registration of multiple confusingly similar disputed domain names may constitute a pattern of bad faith registration and use of the disputed domain names. See Nabisco Brands Co. v. Patron Group, Inc., D2000-0032 (WIPO Feb. 23, 2000) (holding that registration of numerous domain names is one factor in determining registration and use in bad faith). Furthermore, Respondent holds other domain names which contain typosquatted versions of other trademarks (e.g., <limogesjweelry.com> <rosettasone.com> <spafnder.com> <yverocherusa.com>). The Panel finds Respondent’s registration of twelve domain names containing variations of Complainant’s mark constitutes a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 16, 2000) (finding a bad faith pattern of conduct where the respondent registered many domain names unrelated to its business which infringe on famous marks and websites); see also Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent has registered numerous domain names that infringe upon the complainant’s marks and in addition, the respondent has registered domain names that infringe upon other entities’ marks).
Respondent registered the disputed domain names on or after August 2, 2004, several years after Complainant acquired rights in its SHINDIGZ mark. Respondent uses the dispute domain names to profit from Complainant’s affiliate fee program. Respondent uses the confusingly similar disputed domain names to resolve to Complainant’s <shindigz.com> website. The Panel finds Respondent’s use of confusingly similar disputed domain names to profit from Complainant’s affiliate program constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program); see also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy.”).
Furthermore, Respondent has engaged in typosquatting through its use of the <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names, which are common misspellings of Complainant’s SHINDIGZ mark. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds 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 <hindigz.com>, <shidigz.com>, <shimdigz.com>, <shindgiz.com>, <shindgz.com>, <shindizg.com>, <shinidgz.com>, <shinigz.com>, <shndigz.com>, <shnidigz.com>, <sihndigz.com>, and <sindigz.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: November 13, 2009
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