Aeropostale, Inc. v. Whois ID Theft Protection c/o Domain Admin
Claim Number: FA0910001292090
Complainant is Aeropostale, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <aeropstale.com>, registered with Rebel.com.
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 29, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 30, 2009.
On October 30, 2009, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <aeropstale.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.com 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 November 2, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 23, 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@aeropstale.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 30, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <aeropstale.com> domain name is confusingly similar to Complainant’s AEROPOSTALE mark.
2. Respondent does not have any rights or legitimate interests in the <aeropstale.com> domain name.
3. Respondent registered and used the <aeropstale.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Aeropostale, Inc., is a retailer of casual clothing and accessories. Complainant owns a trademark registration for the AEROPOSTALE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,354,292 issued August 13, 1985).
Respondent registered the <aeropstale.com>
domain name on
November 9, 2005. Respondent’s disputed
domain name resolves to a website displaying links to third-party websites,
some of which are in competition with Complainant.
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 Complainant has established rights in the
AEROPOSTALE mark pursuant to Policy ¶ 4(a)(i) through
registration of the mark with the USPTO (Reg. No. 1,354,292 issued August 13,
1985). See Miller Brewing
Complainant argues that Respondent’s <aeropstale.com> domain name is confusingly similar to
Complainant’s AEROPOSTALE mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains a
misspelled version of Complainant’s mark that deletes the “o” and adds the
generic top-level domain (“gTLD”) “.com.”
The Panel finds that a domain name that contains a misspelled version a
complainant’s mark and adds a gTLD creates a confusing similarity between the
disputed domain name and the established mark.
See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and legitimate interests in the disputed domain name. The Panel finds Respondent has made a sufficient prima facie case in support of its allegations, and the burden now shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”). Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent lacks rights and legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel chooses to examine the evidence for applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Complainant asserts that Respondent is neither commonly known
by the disputed domain name, nor licensed to register domain names using the
AEROPOSTALE mark. The WHOIS information does
not indicate Respondent was ever commonly known by the disputed domain name. The Panel finds that without affirmative
evidence of Respondent being commonly known by the disputed domain name,
Respondent lacks all rights and legitimate interests in the disputed domains
name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb.
Forum July 7, 2006) (concluding that the respondent was not commonly known by
the disputed domain names where the WHOIS information, as well as all other
information in the record, gave no indication that the respondent was commonly
known by the disputed domain names, and the complainant had not authorized the
respondent to register a domain name containing its registered mark); see also
M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the
respondent was not commonly known by the <cigaraficionada.com> domain
name under Policy ¶ 4(c)(ii) based on the WHOIS
information and other evidence in the record).
Respondent is using the disputed domain name to display
links advertising third-party websites, some of which are in competition with
Complainant. The Panel infers that
Respondent is using the disputed domain name to earn click-through fees, and
thus finds that Respondent has not made 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 Wells Fargo & Co. v. Lin
Shun Shing, FA 205699 (Nat. Arb. Forum
Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a
website featuring pop-up advertisements and links to various third-party websites
is neither a bona fide offering of goods or services under Policy ¶
4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)
because the registrant presumably receives compensation for each misdirected
Internet user); see also Coryn Group, Inc.
v. Media Insight, FA 198959 (Nat.
Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain
names for a bona fide offering of goods or services nor a legitimate
noncommercial or fair use because the respondent used the names to divert
Internet users to a website that offered services that competed with those
offered by the complainant under its marks).
Complainant has asserted that Respondent engaged in
“typosquatting.” Typosquatting occurs
when a domain name is registered with the intent of diverting Internet users by
way of common typing errors. Here,
Respondent simply misspelled Complainant’s mark by deleting a letter. The Panel finds Respondent’s typosquatting is
itself evidence that Respondent lacks rights and legitimate interests pursuant
to Policy ¶ 4(a)(ii).
See IndyMac Bank
F.S.B. v. Ebeyer, FA 175292
(Nat. Arb. Forum Sept. 19, 2003)
(finding that the respondent lacked rights and legitimate interests in the
disputed domain names because it “engaged in the practice of
typosquatting by taking advantage of Internet users who attempt to access
Complainant's <indymac.com> website but mistakenly misspell Complainant's
mark by typing the letter ‘x’ instead of the letter ‘c’”); 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 the 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.
Respondent’s registration and use of the disputed domain name to display links to Complainant’s competitors on the resolving website constitutes a disruption of Complainant’s business. The Panel finds this constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Respondent’s use of the disputed domain name in order to intentionally attract Internet users to its website by creating confusion as to Complainant’s affiliation with the resolving website is further evidence of bad faith. The Panel infers that Respondent profits from this confusion by receiving click-through fees for diverting Internet users to such websites. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad faith registration and use. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, pursuant to Policy ¶ 4(b)(iv)).
Finally, the Panel finds that Respondent’s engagement in the
practice of typosquatting is itself of bad faith registration and use pursuant
to Policy ¶ 4(a)(iii).
See Zone Labs, Inc.
v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration
and use of [the <zonelarm.com> domain name] that capitalizes on the
typographical error of an Internet user is considered typosquatting.
Typosquatting, itself is evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).”); see also K.R. USA,
INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration
and use of the <philadelphiaenquirer.com> and
<tallahassedemocrat.com> domain names capitalized on the typographical
error of Internet users seeking the complainant's THE PHILADELPHIA
INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith
pursuant to Policy ¶ 4(a)(iii)).
The Panel finds that ¶ 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 <aeropstale.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: December 12, 2009
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