national arbitration forum

 

DECISION

 

MBM Company, Inc. v. Nonamy LLC c/o Nonamy Domain Privacy

Claim Number: FA0910001290086

 

PARTIES

Complainant is MBM Company, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Nonamy LLC c/o Nonamy Domain Privacy (“Respondent”), Oregon, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogesejwelry.com>, <limogesewelry.com>, <limogesjeelry.com>, <limogesjeewlry.com>, <limogesjevelry.com>, <limogesjewelr.com>, <limogesjewelty.com>, <limogesjewelyr.com>, <limogesjewery.com>, <limogesjewlry.com>, <limogesjweelry.com>, <limogesjwelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.com>, registered with Godaddy.com, Inc.

 

PANEL

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.

 

Louis E. Condon as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on October 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 20, 2009.

 

On October 19, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogesejwelry.com>, <limogesewelry.com>, <limogesjeelry.com>, <limogesjeewlry.com>, <limogesjevelry.com>, <limogesjewelr.com>, <limogesjewelty.com>, <limogesjewelyr.com>, <limogesjewery.com>, <limogesjewlry.com>, <limogesjweelry.com>, <limogesjwelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.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 27, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 16, 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@imogesjewelry.com, postmaster@limgesjewelry.com, postmaster@limoegsjewelry.com, postmaster@limoesjewelry.com, postmaster@limogejsewelry.com, postmaster@limogesejwelry.com, postmaster@limogesewelry.com, postmaster@limogesjeelry.com, postmaster@limogesjeewlry.com, postmaster@limogesjevelry.com, postmaster@limogesjewelr.com, postmaster@limogesjewelty.com, postmaster@limogesjewelyr.com, postmaster@limogesjewery.com, postmaster@limogesjewlry.com, postmaster@limogesjweelry.com, postmaster@limogesjwelry.com, postmaster@limogsejewelry.com, postmaster@limogsjewelry.com, postmaster@limojesjewelry.com, postmaster@liogesjewelry.com, postmaster@liomgesjewelry.com, postmaster@lmiogesjewelry.com, and postmaster@lmogesjewelry.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 Louis E. Condon 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogesejwelry.com>, <limogesewelry.com>, <limogesjeelry.com>, <limogesjeewlry.com>, <limogesjevelry.com>, <limogesjewelr.com>, <limogesjewelty.com>, <limogesjewelyr.com>, <limogesjewery.com>, <limogesjewlry.com>, <limogesjweelry.com>, <limogesjwelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.com> domain names are confusingly similar to Complainant’s LIMOGES mark.

 

2.      Respondent does not have any rights or legitimate interests in the <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogesejwelry.com>, <limogesewelry.com>, <limogesjeelry.com>, <limogesjeewlry.com>, <limogesjevelry.com>, <limogesjewelr.com>, <limogesjewelty.com>, <limogesjewelyr.com>, <limogesjewery.com>, <limogesjewlry.com>, <limogesjweelry.com>, <limogesjwelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.com> domain names.

 

3.      Respondent registered and used the <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogesejwelry.com>, <limogesewelry.com>, <limogesjeelry.com>, <limogesjeewlry.com>, <limogesjevelry.com>, <limogesjewelr.com>, <limogesjewelty.com>, <limogesjewelyr.com>, <limogesjewery.com>, <limogesjewlry.com>, <limogesjweelry.com>, <limogesjwelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, MBM Company, Inc., supplies jewelry retailers with personalized jewelry and also sells its personalized jewelry through mail order catalog services and on Complainant’s online store.  Complainant has operated under its LIMOGES mark for over twenty years.  Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its LIMOGES mark (Reg. No. 2,457,539 issued on June 5, 2001).

 

Respondent, Nonamy LLC c/o Nonamy Domain, registered the disputed domain names no earlier than February 25, 2004.  The disputed domain names resolve to Complainant’s <limogesjewelry.com> domain name through Complainant’s affiliate program.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

Complainant registered its LIMOGES mark with the USPTO (Reg. No. 2,457,539 issued on June 5, 2001).  The Panel finds Complainant’s registration with the USPTO is sufficient to establish rights in Complainant’s LIMOGES mark under Policy ¶ 4(a)(i).  See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).

 

Complainant alleges Respondent’s disputed domain names are confusingly similar to Complainant’s LIMOGES mark.  The disputed domain names contain Complainant’s LIMOGES mark and the descriptive term, “jewelry,” which describes Complainant’s jewelry business, either the mark or descriptive term is misspelled.  Past panels have found that common misspellings and the addition of a descriptive term fail to adequately distinguish a disputed domain name from a complainant’s mark.  See 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 Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum Apr. 28, 2003) (finding that the respondent's <marrriott.com> domain name was confusingly similar to the complainant's MARRIOTT mark); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with 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).  The disputed domain names also add the generic top-level domain (“gTLD”) “.com.”  Previous panels have further found the addition of a gTLD is irrelevant under a Policy ¶ 4(a)(i) analysis.  See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).  Therefore, the Panel finds Respondent’s disputed domain names are confusingly similar to Complainant’s LIMOGES mark pursuant to Policy ¶ 4(a)(i).

 

The Panel finds Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

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 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 LIMOGES mark.  Complainant further asserts that Respondent is not sponsored or legitimately affiliated with Complainant in any way.  The WHOIS information identifies the registrant of the disputed domain names as “Nonamy LLC c/o Nonamy Domain.”  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 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).

 

Respondent is using the disputed domain names to redirect Internet users back to Complainant’s website for the commercial gain of Respondent through Complainant’s affiliate program.  Respondent’s use of the disputed domain names that are confusingly similar to the LIMOGES mark to redirect Internet users for this purpose is not bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or legitimate noncommercial or fair uses of the domain name under Policy ¶ 4(c)(iii).  See Sports Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003) (finding that registering a domain name which differs by one letter from the complainant’s commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliates program is not a bona fide offering of goods or services nor a noncommercial use of the domain name); see also Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by signing up for the complainant’s affiliate program upon registering the domain name, a misspelling of the complainant’s mark, the respondent intended to profit off the domain name at the complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)).

 

In addition, Respondent’s use of the <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.com> domain names constitutes typosquatting.  The Panel finds that Respondent’s use of domain names that are common misspellings of the LIMOGES 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 Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. 

 

Registration and Use in Bad Faith

 

Respondent is using the disputed domain names to redirect Internet users back to Complainant’s website for Respondent’s commercial gain through Complainant’s affiliate program.  Thus, the Panel finds Respondent’s uses of the disputed domain names constitute bad faith registration and use under Policy ¶ 4(b)(iv).   See Sports Auth. Mich., Inc. v. Skander, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use); see also Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program).

 

Furthermore, Respondent has engaged in typosquatting through its use of the <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.com> domain names, which are common misspellings of Complainant’s LIMOGES 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 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.

 

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.

 

Accordingly, it is Ordered that the <imogesjewelry.com>, <limgesjewelry.com>, <limoegsjewelry.com>, <limoesjewelry.com>, <limogejsewelry.com>, <limogesejwelry.com>, <limogesewelry.com>, <limogesjeelry.com>, <limogesjeewlry.com>, <limogesjevelry.com>, <limogesjewelr.com>, <limogesjewelty.com>, <limogesjewelyr.com>, <limogesjewery.com>, <limogesjewlry.com>, <limogesjweelry.com>, <limogesjwelry.com>, <limogsejewelry.com>, <limogsjewelry.com>, <limojesjewelry.com>, <liogesjewelry.com>, <liomgesjewelry.com>, <lmiogesjewelry.com>, and <lmogesjewelry.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Louis E. Condon, Panelist

Dated:  November 30, 2009

 

 

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