national arbitration forum

 

DECISION

 

Charlotte Russe Merchandising, Inc. v. rudy hadisentosa

Claim Number: FA0912001297257

 

PARTIES

 

Complainant is Charlotte Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is rudy hadisentosa (“Respondent”), Singapore.

 

REGISTRAR AND DISPUTED DOMAIN NAME

 

The domain name at issue is <charoletterusse.com>, registered with Dynadot, LLC.

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on December 2, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 3, 2009.

 

On December 3, 2009, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <charoletterusse.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name.  Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 December 7, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 28, 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@charoletterusse.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On January 6, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <charoletterusse.com> domain name is confusingly similar to Complainant’s CHARLOTTE RUSSE mark.

 

2.      Respondent does not have any rights or legitimate interests in the <charoletterusse.com> domain name.

 

3.      Respondent registered and used the <charoletterusse.com> domain name in bad faith.

 

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

 

FINDINGS

 

Complainant, Charlotte Russe Merchandising, Inc., operates a retail clothing stores.  Complainant uses its CHARLOTTE RUSSE mark to promote its clothing stores.  Complainant has registered its CHARLOTTE RUSSE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,485,692 issued April 19, 1988).

 

Respondent registered the disputed domain name on August 30, 2000.  The disputed domain name resolves to a website that redirects Internet users to a website featuring links to third-party websites, some of which directly compete with Complainant’s business. 

 

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

 

In order to establish rights in a mark under Policy ¶ 4(a)(i), a complainant must provide evidence of registered or common law rights in a mark.  In these proceedings, Complainant has registered its CHARLOTTE RUSSE mark with the USPTO (Reg. No. 1,485,692 issued April 19, 1988).  A complainant need not provide proof the mark is registered in respondent’s country, it is only necessary that a complainant provide evidence of registration with some federal trademark authority.  See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).  Thus, the Panel finds Complainant has established rights in its CHARLOTTE RUSSE mark pursuant to Policy ¶ 4(a)(i).  See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); 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.”).

 

Respondent’s <charoletterusse.com> domain name contains Complainant’s CHARLOTTE RUSSE mark with the transposition of the letters “l” and “o” in the mark, the addition of an extraneous letter “e” in the mark and the addition of the generic top-level domain “.com.”  The Panel finds these changes do not impede a finding of confusing similarity under Policy ¶ 4(a)(i) because they do not sufficiently distinguish the disputed domain name from Complainant’s mark.  Thus, the Panel finds that a confusing similarity exists between the disputed domain name and the mark under Policy ¶ 4(a)(i).  See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).

 

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

 

Rights or Legitimate Interests

 

Under Policy ¶ 4(a)(ii), Complainant must prove Respondent lacks rights and legitimate interests in the disputed domain name.  Once Complainant has put forward a prima facie case the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to the factors listed in Policy ¶ 4(c).  The Panel finds Complainant has provided a sufficient prima facie case, and Respondent has failed to submit a response to these proceedings.  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).  Despite Respondent’s failure to provide a Response to the Complaint, the Panel elects to evaluate whether the evidence demonstrates Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).

 

There is no evidence in the record suggesting that Respondent is commonly known by the disputed domain name.  Respondent has no license or agreement with Complainant authorizing Respondent to use the CHARLOTTE RUSSE mark and the WHOIS information identifies the registrant as “rudy hadisentosa.”  Thus, the Panel finds there is no evidence Respondent is commonly known by the disputed domain name under 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 America  W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).

 

Respondent is using the confusingly similar disputed domain name to redirect Internet users to third-party websites, some of which compete with Complainant.  The Panel finds this use is not in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii).  See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).

 

Also, Complainant maintains the disputed domain name takes advantage of Internet users who commit common typographical errors when attempting to type Complainant’s CHARLOTTE RUSSE mark.  The Panel finds that Respondent has engaged in typosquatting by misspelling Complainant’s mark in the disputed domain name.  The Panel finds this is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  See 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”); see also 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’”).

 

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

 

Registration and Use in Bad Faith

 

Respondent registered the disputed domain name on August 30, 2000.  Since that time, Respondent has been using the disputed domain name to resolve to a website containing links to third-party websites.  These third-party websites link Internet users to competing retail clothing services.  The Panel finds this use of the disputed domain names is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); 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).

 

The disputed domain name resolves to a website displaying links to third-party websites, some of which compete with Complainant’s retail clothing business.  The Panel presumes Respondent receives click-through fees for this use of the disputed domain name.  Because the disputed domain name is confusingly similar to Complainant’s mark, Internet users are likely to become confused as to Complainant’s affiliation with the disputed domain name and resolving website.  Respondent was seeking to profit from this confusion by hosting advertisements on the resolving website.  The Panel finds this use is evidence of Respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv).  See American Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s registration of an infringing domain name to redirect Internet users to banner advertisements constituted bad faith use of the domain name).

 

Additionally, Complainant has shown that Respondent has engaged in typosquatting by using a domain name composed of a misspelling Complainant’s CHARLOTTE RUSSE mark.  The Panel finds that Respondent’s engagement in typosquatting is evidence that Respondent registered and is using the disputed domain name in bad faith under 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 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.


 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <charoletterusse.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Bruce E. Meyerson, Panelist

Dated:  January 20, 2010

 

 

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