Cabela's, Inc. v. Domain Administration c/o W. D. G. Ltd.
Claim Number: FA1001001302327
Complainant is Cabela's,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <gabelas.com>, registered with Tucows 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 11, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 12, 2010.
On January 11, 2010, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <gabelas.com> domain name is registered with Tucows Inc. and that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is bound by the Tucows Inc. 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 13, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 2, 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@gabelas.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 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant markets and sells hunting, fishing, and outdoor gear.
Complainant began operations in 1961, and now sells its
products in every state in the
Complainant offers its outdoor products under its CABELAS.COM trademark.
Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CABELAS.COM trademark (including Reg. No. 2,247,977, issued May 25, 1999).
Respondent is not affiliated with Complainant, and Respondent is not licensed by Complainant to use its CABELAS.COM mark.
Respondent is not an authorized vendor, supplier or distributor of Complainant’s goods.
Respondent registered the <gabelas.com> domain name on April 20, 2002.
The disputed domain name resolves to a website featuring hyperlinks to the sites of commercial third-parties.
Some of these third-parties featured on the resolving site directly compete with Complainant in the outdoor products industry.
Respondent’s <gabelas.com> domain name is confusingly similar to Complainant’s CABELAS.COM mark.
Respondent does not have any rights to or legitimate interests in the <gabelas.com> domain name.
Respondent’s use of the disputed domain name disrupts Complainant’s outdoor product business because Internet users seeking outdoor products from Complainant may be redirected to Complainant’s competitors through Respondent’s website.
Respondent registered and uses the <gabelas.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant holds multiple trademark registrations for the
CABELAS.COM trademark with the ("USPTO"). Trademark registration with a national
trademark authority is sufficient to establish rights in a mark.
Complainant alleges that Respondent’s <gabelas.com> domain name is confusingly similar to Complainant’s CABELAS.COM mark. The disputed domain name includes a common misspelling of Complainant’s mark, replacing the letter “c” with the letter “g.” Respondent’s use of such a common misspelling is insufficient to distinguish the disputed domain name from the competing mark under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to a complainant's BELKIN mark because the name merely replaced the letter “i” in that complainant's mark with the letter “e”); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to a complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar).
The Panel therefore finds Complainant has satisfied its obligations under Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights to and legitimate interests in the <gabelas.com> domain name. Previous panels have found that when a complainant makes out a prima facie case in support of its allegations, the burden shifts to a respondent to prove that it does have rights to or legitimate interests in its domain name. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make out a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have rights or legitimate interests in a domain name);
Complainant has made out a prima facie case. Because of Respondent’s failure to respond to the Complaint, we may presume that Respondent does not have rights to or legitimate interests in the <gabelas.com> domain name. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that, because a 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.
However, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that the pertinent WHOIS information identifies the domain name registrant as “Domain Administration c/o W. D. G. Ltd.,” which is not similar to the disputed domain name. Moreover, Complainant asserts, and Respondent does not deny, that Respondent is not affiliated with Complainant, that Respondent is not licensed by Complainant to use its CABELAS.COM mark, and that Respondent is not an authorized vendor, supplier, or distributor of Complainant’s goods. On this showing, we are constrained to conclude that Respondent is commonly known by the <gabelas.com> domain name. Therefore, Respondent has failed to establish rights or legitimate interests in the <gabelas.com> domain name pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that that respondent was commonly known by that domain name, including the relevant WHOIS information, as well as the complainant’s undenied assertion that it did not authorize or license that 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 that a respondent had no rights to or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by the disputed domain name).
We also observe that there is no dispute as to Complainant’s
allegation that Respondent is using the <gabelas.com> domain name to resolve to a website featuring
a hyperlink directory, and that the associated hyperlinks resolve to the
websites of third-parties, some of which compete with Complainant in the
outdoor products industry. In the
circumstances here presented, we may safely presume that Respondent receives
click-through fees from the directed visits of Internet users to the
aforementioned hyperlinks. This use of the contested disputed domain name 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 <gabelas.com>
domain name, which contains a common misspelling of Complainant’s CABELAS.COM
mark, constitutes typo-squatting, which is further evidence that Respondent lacks
rights to or legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(a)(ii). See
Microsoft Corp. v. Domain Registration
[a
respondent had] “engaged
in typosquatting, which provides additional evidence that [that] respondent
lacks rights and legitimate interests in the disputed domain name under Policy
¶ 4(a)(ii).
See also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that a respondent lacked both rights to and legitimate interests in 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 thus finds that Complainant has met the requirements of Policy ¶ 4(a)(ii).
Respondent’s <gabelas.com> domain name resolves to a website containing
a directory of hyperlinks to third-parties’ websites. Some of the third-parties’ websites directly
compete with Complainant in the outdoor product industry. Complainant asserts, and Respondent does not
deny, that Respondent’s use of the disputed domain name disrupts Complainant’s
outdoor product business because Internet users looking to buy outdoor products
from Complainant may be redirected to Complainant’s competitors through
Respondent’s website. Thus we conclude
that Respondent’s use of the <gabelas.com> domain name disrupts
Complainant’s outdoor product business and constitutes bad faith registration
and use of the contested domain name 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 domain name confusingly similar to
a competing mark to attract Internet users to a directory website containing
links to the websites of a complainant’s commercial competitors represents bad
faith registration and use of the domain under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v.
Tex. Int’l Prop. Assoc., FA
914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where a
respondent’s website featured hyperlinks to the websites of a complainant’s
business competitors, that respondent’s use of the <redeemaamiles.com>
domain name constituted bad faith disruption of that complainant’s business under
Policy ¶ 4(b)(iii)).
We presume that
Respondent receives click-through fees from the hyperlinks on its website relating
to Complainant’s competitors in the outdoor product industry. Internet users may thus become confused as to
the possibility of Complainant’s affiliation with or sponsorship of the
third-party hyperlinks and websites resolving from the <gabelas.com>
domain name. Respondent’s receipt of such
click-through fees in these circumstances evidences bad faith registration and
use of the contested domain name under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb.
Forum July 18, 2006) (finding that a respondent engaged in bad faith
registration and use of a domain name by using one that was confusingly similar
to a complainant’s mark to offer links to third-party websites that featuring
services similar to those offered by that 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).
Finally under this head, Respondent has engaged in typo-squatting through its formation and use of the <gabelas.com> domain name, which contains a common misspelling of Complainant’s CABELAS.COM mark. Respondent’s practice of typo-squatting constitutes additional evidence of bad faith registration and use of the contested domain name pursuant to Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that respondent engaged in typo-squatting, which is evidence of bad faith registration and use of a domain name under Policy ¶ 4(a)(iii)); see also 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).
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <gabelas.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 22, 2010
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