Aeropostale, Inc. v. Hayarkon Ruppin
Claim Number: FA0912001297715
Complainant is Aeropostale,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <aeropostile.com>, registered with Moniker.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 7, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 8, 2009.
On December 11, 2009, Moniker confirmed by e-mail to the National Arbitration Forum that the <aeropostile.com> domain name is registered with Moniker and that Respondent is the current registrant of the name. Moniker has verified that Respondent is bound by the Moniker 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 15, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 4, 2010 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@aeropostile.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 11, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <aeropostile.com> domain name is confusingly similar to Complainant’s AEROPOSTALE mark.
2. Respondent does not have any rights or legitimate interests in the <aeropostile.com> domain name.
3. Respondent registered and used the <aeropostile.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Aéropostale, Inc., markets and sells causal apparel and accessories. Complainant operates a website resolving from Complainant’s <aeropostale.com> domain name. Complainant began operation in 1995. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its AEROPOSTALE mark (Reg. No. 1,354,292 issued August 13, 1985).
Respondent registered the <aeropostile.com> domain name on December 22, 2003. The disputed domain name resolves to a website featuring hyperlinks and advertisements relating to Complainant and Complainant’s competitors in the casual apparel and accessories.
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 has
registered the AEROPOSTALE mark
with the USPTO (Reg. No. 1,354,292 issued August 13, 1985). Past
panels have held that registration of a mark with the USPTO is sufficient to
establish Complainant’s rights under Policy ¶ 4(a)(i). Therefore, the Panel finds that Complainant
has established rights in the AEROPOSTALE mark through its registration with the USPTO. See Metro. Life Ins. Co.
v. Bonds, FA 873143
(Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark
registration adequately demonstrates a complainant’s rights in a mark under
Policy ¶ 4(a)(i)); see also Reebok Int’l
Ltd. v.
Complainant claims Respondent’s <aeropostile.com>
domain name is confusingly similar to Complainant’s AEROPOSTALE mark. The disputed domain name contains a common
misspelling of Complainant’s mark, by exchanging the letter “i” to “a,” and addding
the generic top-level domain (“gTLD”) “.com.”
Past panels have found a disputed domain name that contains a common
misspelling of a complainant’s mark coupled with a gTLD remains confusingly
similar to a complainant’s mark. See Belkin Components v. Gallant, FA
97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain
name confusingly similar to the complainant's BELKIN mark because the name
merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Jerry Damson, Inc. v.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <aeropostile.com> domain name. The burden shifts to Respondent to prove it does have rights or legitimate interests when Complainant makes a prima facie case in support of its allegations under Policy 4(a)(ii). The Panel finds Complainant made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to infer that Respondent does not have rights or legitimate interests in the disputed 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 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.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”).
The WHOIS information identifies the domain name registrant as “Hayarkon Ruppin,” which Complainant contends is not similar to the disputed domain name. Complainant asserts that Respondent is not affiliated with Complainant and that Respondent is not licensed by Complainant to use its AEROPOSTALE mark. Complainant alleges Respondent is not an authorized vendor, supplier, or distributor of Complainant’s apparel products. The Panel finds no evidence in the record demonstrating that Respondent is commonly known by the <aeropostile.com> domain name. Therefore, the Panel finds that Respondent does not have established rights or legitimate interests in the <aeropostile.com> domain name pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); 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 uses the <aeropostile.com> domain name to resolve to a website featuring hyperlinks and advertisements to Complainant and Complainant’s competitors in the causal apparel and accessories industry. Respondent likely receives click-through fees from the aforementioned hyperlinks and advertisements. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant claims Respondent’s <aeropostile.com> domain name resolves to a website containing hyperlinks and advertisements resolving to Complainant and Complainant’s competitors in the causal apparel and accessories industry. Internet users interested in purchasing Complainant’s apparel products may instead purchase apparel products from a competitor of Complainant because of Respondent’s use of the confusingly similar disputed domain name. The Panel finds Respondent’s use of the disputed domain name disrupts Complainant’s casual apparel and accessory business, which evidences bad faith registration and use under Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
The Panel infers Respondent receives click-through fees from
the links and advertisements. Respondent
is attempting to use the confusingly similar disputed domain name to profit
from Internet user confusion as to Complainant’s affiliation with the resolving
website. The Panel finds Respondent’s
use of the disputed domain name constitutes bad faith registration and use under
Policy ¶ 4(b)(iv).
See
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aeropostile.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 25, 2010
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