Hot Topic, Inc. v. Transure Enterprise Ltd c/o Host Master
Claim Number: FA1001001301619
Complainant is Hot Topic, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR
The domain names at issue are <hhottopic.com>, <hottopiv.com>, <hottopyc.com>, <hottotpic.com>, <hottppic.com>, and <torriid.com>, registered with Above, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 12, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 1, 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@hhottopic.com, postmaster@hottopiv.com, postmaster@hottopyc.com, postmaster@hottotpic.com, postmaster@hottppic.com, postmaster@torriid.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 <hhottopic.com>, <hottopiv.com>, <hottopyc.com>, <hottotpic.com>, and <hottppic.com> domain names are confusingly similar to Complainant’s HOT TOPIC mark. Respondent’s <torriid.com> domain name is confusingly similar to Complainant’s TORRID mark.
2. Respondent does not have any rights or legitimate interests in the <hhottopic.com>, <hottopiv.com>, <hottopyc.com>, <hottotpic.com>, <hottppic.com>, and <torriid.com> domain names.
3. Respondent registered and used the <hhottopic.com>, <hottopiv.com>, <hottopyc.com>, <hottotpic.com>, <hottppic.com>, and <torriid.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hot Topic, Inc., is a
mall-based specialty retailer with over 681 stores in the
Respondent registered the disputed domain names on or after
Complainant
offers evidence that Respondent has a history of registering domain names
infringing upon the trademark rights of others and has been ordered by previous
UDRP panels to transfer the disputed domain names to the respective
complainants. E.g., Academy
Ltd. v. Transure Enter. Ltd, FA 1283916 (Nat.
Arb. Forum
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 obtained multiple trademark registrations
for the HOT TOPIC (e.g., Reg. No.
2,771,871 issued
Complainant argues that
Respondent’s <hhottopic.com>, <hottopiv.com>,
<hottopyc.com>, <hottotpic.com>, and <hottppic.com>
domain names are confusingly similar to Complainant’s
In
addition, Complainant contends that Respondent’s <torriid.com> domain name is confusingly similar to Complainant’s TORRID mark
pursuant to Policy ¶ 4(a)(i). Respondent’s
<torriid.com> domain name
contains Complainants’ TORRID mark while adding the letter “i” and the generic
top-level domain “.com.” Neither of
these alterations constitute substantive changes which distinguish the disputed
domain name from Complainant’s mark under a Policy ¶ 4(a)(i)
analysis. See T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum
May 22, 2007) (finding that the addition of the letter “s” to a registered
trademark in a contested domain name is not enough to avoid a finding of
confusing similarity under Policy ¶ 4(a)(i)); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25,
2000) (finding that the top level of the domain name such as “.net” or “.com”
does not affect the domain name for the purpose of determining whether it is
identical or confusingly similar). The
Panel thus finds that the <torriid.com>
domain name is confusingly similar to Complainant’s TORRID mark under Policy ¶
4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have any
rights or legitimate interests in the disputed domain names. Once a prima facie case has been established by Complainant, the burden
then shifts to Respondent to demonstrate its rights or legitimate interests in
the disputed domain names pursuant to Policy ¶ 4(c). The Panel finds that Complainant has
adequately established a prima facie
case in these proceedings. Because
Respondent has failed to respond to the allegations against it, the Panel may
assume that Respondent lacks any rights or legitimate interests in the disputed
domain names. See Intel Corp. v. Macare, FA
660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must
first make a prima facie case that [the] respondent lacks rights and
legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to
show it does have rights or legitimate interests.”); see also American Express
Co. v. Fang Suhendro, FA 129120 (Nat. Arb.
Forum
Complainant asserts that Respondent is neither commonly
known by the disputed domain names, nor licensed to register a domain name
using the HOT TOPIC or TORRID marks. Respondent’s WHOIS
information identifies the registrant as “Transure Enterprise Ltd c/o Host
Master” and therefore lacks any defining characteristics relating it to the
disputed domain names. The Panel finds
that without affirmative evidence Respondent is commonly known by the disputed
domain names, Respondent lacks all rights and legitimate interests in the
disputed domain names 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
Respondent’s disputed
domain names resolve to websites featuring advertisements and links relating to
Complainant’s competitors in the specialty retail industry. The Panel may
infer that Respondent profits through the generation of click-through fees from
the links to Complainant’s competitors. Therefore, the Panel finds that
Respondent’s use of the disputed domain names is not in connection with a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use of the disputed domain names under
Policy ¶ 4(c)(iii). See 24 Hour Fitness USA, Inc. v.
24HourNames.com-Quality Domains For
Typosquatting occurs when a respondent purposefully includes
typographical errors in the mark portion of a disputed domain names to divert
Internet users who commit those typographical errors. The disputed domain names
take advantage of Internet users who mistype Complainant’s HOT TOPIC and TORRID
marks. Complainant contends that Respondent has engaged in typosquatting
by misspelling Complainant’s marks in the disputed domain names. The
Panel agrees and concludes that Respondent’s engagement in typosquatting is
further evidence that Respondent does not have rights or legitimate interests
in the disputed domain names pursuant to Policy ¶ 4(a)(ii).
See LTD Commodities LLC v. Party
Night, Inc., FA 165155 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent in other UDRP
proceedings, wherein the disputed domain names were ordered to be transferred
from Respondent to the respective complainants in those cases. Academy Ltd. v. Transure Enter. Ltd, FA 1283916 (Nat. Arb.
Forum
Respondent’s disputed domain names resolve to websites that promote
Complainant’s competitors in the specialty retail industry through
click-through links. Such an activity
clearly disrupts Complainant’s business, as Internet users seeking
Complainant’s products will be redirected to Complainant’s competitors. This qualifies as bad faith registration and
use under Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
The Panel infers that Respondent receives click-through fees from the use of the aforementioned hyperlinks. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain names and the resolving websites. Therefore, the Panel finds that Respondent’s use of the disputed domain names 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 University 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).”).
The Panel further finds that Respondent’s disputed domain names
are merely typosquatted versions of Complainant’s HOT TOPIC and TORRID marks,
and that such typosquatting constitutes bad faith registration and use under
Policy ¶ 4(a)(iii).
See Computerized Sec. Sys.,
Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the
respondent engaged in typosquatting, which is evidence of bad faith
registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA
154528 (Nat. Arb. Forum
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 <hhottopic.com>, <hottopiv.com>, <hottopyc.com>, <hottotpic.com>, <hottppic.com>, and <torriid.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 22, 2010
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