Cabela's, Inc. v. Standard Bearer Enterprises Limited c/o Standard Bearer
Claim Number: FA1001001301893
Complainant is Cabela's Inc. (“Complainant”), represented by , of CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain name at issue are <cabelis.com> and <cebelas.com>, registered with Moniker.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 6, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 7, 2010.
On January 8, 2010, Moniker confirmed by e-mail to the National Arbitration Forum that the <cabelis.com> and <cebelas.com> domain names are registered with Moniker and that Respondent is the current registrant of the names. 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 January 8, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 28, 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@cabelis.com and postmaster@cebelas.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 4, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cabelis.com> and <cebelas.com> domain names are confusingly similar to Complainant’s CABELA’S mark.
2. Respondent does not have any rights or legitimate interests in the <cabelis.com> and <cebelas.com> domain names.
3. Respondent registered and used the <cabelis.com> and <cebelas.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cabela’s Inc., holds multiple trademark
registrations with the United States Patent and Trademark Office (“USPTO”) for
the CABELA’S mark (e.g., Reg. No. 1,151,981
issued
Respondent, Standard Bearer Enterprises Limited c/o Standard Bearer, registered the disputed domain name <cabelis.com> on November 23, 2009 and the disputed domain name <cebelas.com> on November 17, 2009. The disputed domain names resolve to websites featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees from these linked websites.
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 asserts rights in its CABELA’S mark through its
holding of multiple registrations for the CABELA’S mark with the USPTO (e.g., Reg. No. 1,151,981 issued
Complainant argues that
Respondent’s <cabelis.com>
and <cebelas.com> domain names are confusingly similar to
Complainant’s CABELA’S mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain names are
confusingly similar to Complainant’s CABELA’S mark because Respondent’s domain
names merely replace a letter in Complainant’s mark with another letter, delete
the apostrophe from Complainant’s mark and add the generic top-level domain
(“gTLD”) “.com.” The Panel finds that
the replacement of a letter in Complainant’s mark creates a confusing similarity
between the disputed domain names and 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 The Royal Bank of Scotland Grp. plc et al. v. Demand Domains, FA
714952 (Nat. Arb. Forum Aug. 2, 2006) (“The Panel finds that merely by
misspelling Complainants’ mark, Respondent has not sufficiently differentiated
the <privelage.com> domain name from the PRIVILEGE mark under Policy ¶
4(a)(i).”). Additionally, the Panel
finds that the deletion of the apostrophe from Complainant’s mark does not
distinguish the disputed domain names from the mark. See
LOreal USA Creative Inc v. Syncopate.com
– Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec. 8, 2003)
(finding that the omission of an apostrophe did not significantly distinguish
the domain name from the mark); see also
Gurney’s Inn Resort & Spa Ltd. v.
Whitney, FA 140656 (Nat. Arb. Forum Feb. 19, 2003) (“Punctuation and spaces
between words are not significant in determining the similarity of a domain
name and a mark because punctuation and spaces are not reproducible in a domain
name.”). The Panel also finds that the
addition of a gTLD to a domain name is irrelevant in distinguishing a disputed
domain name and a mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation
of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See 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.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Standard Bearer Enterprises Limited c/o Standard Bearer.” Respondent is not sponsored by or legitimately affiliated with Complainant in any way, nor has Complainant given Respondent permission to use Complainant’s mark in a domain name. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by 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 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’s disputed domain names were registered on November 23, 2009 and November 17, 2009. The disputed domain names resolve to websites featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees from these linked websites. The Panel finds that Respondent’s use of the disputed domain names is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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 also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Complainant argues that Respondent is using typographical errors in the confusingly similar disputed domain names to redirect Internet users to Complainant’s website and attempting to profit from it through the collection of pay-per-click fees. The Panel finds that Respondent has no rights or legitimate interests under 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 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.
The Panel finds that Respondent’s registration and use of
the disputed domain names to link Internet users to websites featuring
third-party links which are in competition with Complainant constitutes a
disruption of Complainant’s business and constitutes bad faith registration and
use pursuant to Policy ¶ 4(b)(iii). See 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)); see
also
The Panel finds Respondent’s use of the disputed domain names and Respondent’s attempt to intentionally attract Internet users to profit through the receipt of pay-per-click fees by creating a strong likelihood of confusion with Complainant’s CABELA’S mark is evidence of bad faith pursuant to 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 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)(iv) 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).
As established previously, Respondent has engaged in the practice of typosquatting by intentionally misspelling Complainant’s CABELA’S mark. The Panel finds typosquatting is itself evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”); see also 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 <cabelis.com> and <cebelas.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: February 17, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum