Claim Number: FA1001001301284
Complainant is Frederick's
of Hollywood Group Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <freddericks.com>, <fredericksofholywood.com>, and <fredreicks.com>, registered with Dotregistrar.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 5, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 25, 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@freddericks.com, postmaster@fredericksofholywood.com, and postmaster@fredreicks.com> by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <freddericks.com>, <fredericksofholywood.com>, and <fredreicks.com> domain names are confusingly similar to Complainant’s FREDERICKS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <freddericks.com>, <fredericksofholywood.com>, and <fredreicks.com> domain names.
3. Respondent registered and used the <freddericks.com>, <fredericksofholywood.com>, and <fredreicks.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Frederick’s of Hollywood Group Inc., markets
and sells lingerie. Complainant has been
in operation since 1946. Complainant has
sold its lingerie products under the name
Respondent, Dong Wang, registered the <freddericks.com>, <fredericksofholywood.com>,
and <fredreicks.com> domain names on
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 holds multiple trademark registrations of the
FREDERICKS.COM mark with the USPTO (e.g.,
Reg. No. 2403596 issued
Complainant contends it has established rights in the
FREDERICKS.COM mark. Previous panels
have found that trademark registration with a federal trademark authority is
sufficient to establish rights in a mark.
Respondent’s <freddericks.com> and <fredreicks.com>
domain names contain common misspellings of Complainant’s FREDERICKS.COM mark by
adding the letter “d” or by transposing the letters “e” and “r.” The Panel finds Respondent’s use of common
misspellings of Complainant’s mark fails to adequately distinguish the disputed
domain names from Complainant’s mark. See Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the addition of the
letter “c” to the complainant’s SAFLOK mark does not distinguish the
<saflock.com> domain name from the mark under Policy ¶ 4(a)(i)); see also Microsoft Corp. v. Domain
Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007)
(finding the respondent’s <microssoft.com> domain name to be confusingly
similar to the complainant’s MICROSOFT mark because they differ by only one
letter, and “such a small alteration is insufficient to avoid a finding of
confusing similarity under Policy ¶ 4(a)(i)”); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26,
2002) (finding <googel.com> to be confusingly similar to the
complainant’s GOOGLE mark and noting that “[t]he transposition of two letters
does not create a distinct mark capable of overcoming a claim of confusing
similarity, as the result reflects a very probable typographical error”); see
also Wyndham IP Corp. v. LaPorte
Holdings, Inc., FA 373545 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any
rights or legitimate interests in the <freddericks.com>, <fredericksofholywood.com>,
and <fredreicks.com> 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
The WHOIS information, provided by
Complainant, lists Respondent as “Dong Wang.” Respondent fails to offer evidence
contradicting this information and showing Respondent is commonly known by the <freddericks.com>, <fredericksofholywood.com>,
and <fredreicks.com> domain names. There is no other evidence on
the record showing Respondent is commonly known by the disputed domain
names. Complainant further asserts that
Respondent is not authorized to use the FREDERICKS.COM mark. Therefore the Panel finds that Respondent is
not commonly known by the <freddericks.com>, <fredericksofholywood.com>,
and <fredreicks.com> domain names pursuant to Policy ¶ 4(c)(ii). See
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); see
also Educ. Broad. Corp. v. DomainWorks Inc., FA
882172 (Nat. Arb. Forum
Respondent is using the <freddericks.com>, <fredericksofholywood.com>,
and <fredreicks.com> domain names to resolve to websites featuring hyperlinks to Complainant’s competitors
in the lingerie business. The Panel
finds this use of the confusingly similar disputed domain names is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Jerry Damson, Inc. v.
In addition, Respondent’s use of the <freddericks.com> and <fredreicks.com>
domain names constitutes typosquatting.
The Panel finds that Respondent’s use of domain names that are common
misspellings of the FREDERICKS.COM 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
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <freddericks.com>, <fredericksofholywood.com>,
and <fredreicks.com> domain names resolve to websites featuring
hyperlinks relating to Complainant’s competitors in the lingerie business. Complainant claims that Respondent’s use of
the disputed domain names disrupts Complainant’s lingerie business because
Internet users looking to buy lingerie products from Complainant may be
redirected to Complainant’s competitors through Respondent’s confusingly
similar website. The Panel finds
Respondent’s use of the disputed domain names does disrupt Complainant’s
business and constitutes bad faith registration and use pursuant to Policy ¶
4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding
bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a
respondent used the disputed domain name to operate a commercial search engine
with links to the complainant’s competitors); see also Red Hat,
Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the
respondent engaged in bad faith registration and use pursuant to Policy ¶
4(b)(iii) by using the disputed domain names to operate a commercial search
engine with links to the products of the complainant and to complainant’s
competitors, as well as by diverting Internet users to several other domain
names).
The Panel infers
Respondent receives click-through fees from the links relating to Complainant’s
competitors in the lingerie business.
Internet users may become confused as to Complainant’s affiliation with and
sponsorship of the competing hyperlinks and websites resolving from the
disputed domain names. The Panel finds
Respondent’s receipt of click-through fees constitutes bad faith registration
and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc.
v. Siddiqi, FA 721969
(Nat. Arb. Forum July 18, 2006) (finding that the
respondent engaged in bad faith registration and use by using a domain name
that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
complainant); see also Univ. of Houston
Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain
name to operate a website which features links to competing and non-competing
commercial websites from which Respondent presumably receives referral
fees. Such use for Respondent’s own
commercial gain is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).”).
Furthermore, Respondent has engaged in typosquatting through its use of the <freddericks.com> and <fredreicks.com> domain names, which are common misspellings of Complainant’s FREDERICKS.COM 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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <freddericks.com>, <fredericksofholywood.com>, and <fredreicks.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated:
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