MBM Company, Inc. v. Nonamy LLC c/o Nonamy Domain Privacy
Claim Number: FA0910001290086
Complainant is MBM Company, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
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.
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.
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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
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.
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
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.
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 registered its
Complainant alleges Respondent’s disputed domain names are
confusingly similar to Complainant’s
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 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
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
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
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
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
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
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
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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