Sotheby's v. Wang Zhihui c/o Wang Zhihui
Claim Number: FA0910001289668
Complainant is Sotheby's
(“Complainant”), represented by Sujata
Chaudhri, of Cowan, Liebowitz & Latman, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <dothebys.com>, registered with Xin Net Technology Corporation.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 15, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 19, 2009. The Complaint was submitted in both Chinese and English.
On October 16, 2009, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <dothebys.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 28, 2009, a Chinese language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 17, 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@dothebys.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 20, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <dothebys.com> domain name is confusingly similar to Complainant’s SOTHEBY’S mark.
2. Respondent does not have any rights or legitimate interests in the <dothebys.com> domain name.
3. Respondent registered and used the <dothebys.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Sotheby’s, has operated an auction business for
the sale of jewelry, fine art, and other collectibles since 1744. Complainant operates in countries all over
the world: People’s Republic of
Respondent, Wang Zhibui, registered the <dothebys.com> domain name on April 7, 2009. The disputed domain name resolves to online shop offering different products unrelated to Complainant such as electronic products, perfume, flowers, and other unrelated products.
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 contends it has established rights in the
SOTHEBY’S mark. Previous panels have
found that a trademark registration with a federal trademark authority is
sufficient to establish rights in a mark.
Complainant alleges Respondent’s <dothebys.com> domain name is confusingly similar to Complainant’s SOTHEBY’S mark. The disputed domain name misspells Complainant’s mark by exchanging the letter “s” with the letter “d,” removes the apostrophe in the mark, and adds the generic top-level domain (“gTLD”). The Panel finds a common misspelling, the removal of an apostrophe, and the addition of a gTLD are insufficient to adequately distinguish the disputed domain name 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 Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant); see also LOreal USA Creative Inc v. Syncopate.com – Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec. 8, 2003) (finding that the omission of an apostrophe did not significantly distinguish the domain name from the mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel finds Respondent’s <dothebys.com> domain name is confusingly similar to Complainant’s SOTHEBY’S mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <dothebys.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a 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 <dothebys.com> 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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Respondent has
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the <dothebys.com> domain
name. Complainant asserts that
Respondent is not authorized to use the SOTHEBY’S mark. The WHOIS information identifies the
registrant as “Wang Zhibui.” Therefore,
the Panel finds that Respondent is not commonly known by the <dothebys.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 Coppertown
Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the WHOIS
information, suggesting that the respondent was commonly known by the disputed
domain name).
Respondent’s <dothebys.com> domain name resolves to an online shop
offering different products unrelated to Complainant such as electronic
products, perfume, flowers, and other unrelated products. The Panel finds this use of a confusingly
similar disputed domain name is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the
domain name under Policy ¶ 4(c)(iii). See
In addition, Respondent’s use of the <dothebys.com>
domain name, a common misspelling of Complainant’s SOTHEBY’S mark, constitutes
typosquatting. The Panel finds that
Respondent’s use of a disputed domain name, that is a common misspelling of the
SOTHEBY’S mark, to redirect Internet users seeking Complainant, is further
evidence that Respondent fails to establish rights or legitimate interests in
the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds
Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <dothebys.com> domain name to resolve to an online shop offering different products unrelated to Complainant such as electronic products, perfume, flowers, and other unrelated products. Internet users, interested in Complainant and Complainant’s jewelry, fine art, and other collectibles auction services, may become confused as to Complainant’s sponsorship and affiliation of the resolving website. Respondent profits from this confusion and attempts to profit by selling unrelated products. Therefore, the Panel finds such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Furthermore, Respondent has engaged in typosquatting through its use of the <dothebys.com> domain name, which is a common misspelling of Complainant’s SOTHEBY’S mark. Therefore, the Panel finds Respondent’s engagement in the practice of typosquatting additionally constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also 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).”).
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 <dothebys.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: December 7, 2009
National
Arbitration Forum