Hot Topic, Inc. v.
Claim Number: FA1001001303840
Complainant is Hot Topic, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR
The domain names at issue are <hgottopic.com>, <horttopic.com>, <hotptopic.com>, <hottobic.com>, <hottooic.com>, <hottopioc.com>, <hottopiuc.com>, <hottopixc.com>, and <hottopuic.com>, registered with Compana, LLC.
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 25, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 16, 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@hgottopic.com, postmaster@horttopic.com, postmaster@hotptopic.com, postmaster@hottobic.com, postmaster@hottooic.com, postmaster@hottopioc.com, postmaster@hottopiuc.com, postmaster@hottopixc.com, and postmaster@hottopuic.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 <hgottopic.com>, <horttopic.com>, <hotptopic.com>, <hottobic.com>, <hottooic.com>, <hottopioc.com>, <hottopiuc.com>, <hottopixc.com>, and <hottopuic.com> domain names are confusingly similar to Complainant’s HOT TOPIC mark.
2. Respondent does not have any rights or legitimate interests in the <hgottopic.com>, <horttopic.com>, <hotptopic.com>, <hottobic.com>, <hottooic.com>, <hottopioc.com>, <hottopiuc.com>, <hottopixc.com>, and <hottopuic.com> domain names.
3. Respondent registered and used the <hgottopic.com>, <horttopic.com>, <hotptopic.com>, <hottobic.com>, <hottooic.com>, <hottopioc.com>, <hottopiuc.com>, <hottopixc.com>, and <hottopuic.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hot Topic, Inc., holds
registrations for the HOT TOPIC mark in association with its retail and online
store services specializing in clothing, accessories, cosmetics, handbags and
wallets, and doll and action figure clothing and accessories. Complainant owns multiple trademark
registrations with the United States Patent and Trademark Office (“USPTO”) for
the HOT TOPIC mark (e.g., Reg. No.
2,771,871 issued
Respondent, Texas
International Property Associates - NA NA, registered the <hottooic.com> and <hottopuic.com> domain names on
Respondent is a serial
cybersquatter who has been the respondent in other UDRP proceedings in which
the respective domain names were transferred to the respective
Complainants. E.g., Balenciaga v.
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 owns multiple trademark registrations for the
HOT TOPIC mark with the USPTO (e.g.,
Reg. No. 2,771,871 issued October 7, 2003).
The Panel finds Complainant has established rights in the HOT TOPIC mark
for purposes of Policy ¶ 4(a)(i) through its trademark
registrations with the USPTO. See Automotive Racing Products, Inc. v.
Linecom, FA 836787 (Nat. Arb. Forum Dec. 21, 2006) (finding that the
Complainant’s federal trademark registration established its rights in the mark
under Policy ¶ 4(a)(i)); see also
Complainant argues that Respondent’s disputed domain names
are confusingly similar to Complainant’s
The Panel finds that simple misspellings that merely
introduce an additional letter into Complainant’s mark fail to distinguish the
disputed domain names from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). See
Therefore, the Panel finds that Respondent’s disputed domain
names are confusingly similar to Complainant’s
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has put forth a prima facie case, the burden 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 and legitimate interests in the disputed domain names. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that “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 Dec. 30, 2002) (“[B]ased on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). The Panel, however, elects to consider the evidence in the record in light of the Policy ¶ 4(c) factors to determine if Respondent has any rights and legitimate interests in the disputed domain names.
Complainant contends that Respondent is not commonly known
by the disputed domain names. The Panel
finds that the WHOIS information for each disputed domain name identifies the
registrant as “Texas International Property Associates,” which demonstrates
that Respondent is not commonly known by the disputed domain names. Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel finds Respondent is not commonly known by
the disputed domain names and therefore lacks rights and legitimate interests
in the disputed domain names. See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent’s disputed domain names resolve to websites featuring generic links to third-party websites, some of which compete with Complainant’s business. The Panel finds that Respondent’s use of the disputed domain names is not 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 Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites).
Complainant contends that Respondent is capitalizing on
common misspellings of Complainant’s HOT TOPIC mark in order to misdirect
Internet users seeking Complainant’s online presence. The Panel finds this practice constitutes
typosquatting, which is evidence that Respondent lacks rights and legitimate
interests in the disputed domain names under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent has engaged in a pattern of cybersquatting as
evidenced by several adverse UDRP proceedings against Respondent. E.g., Balenciaga v.
Respondent’s disputed domain names resolve to websites containing links to third-party websites, some of which compete with Complainant. Such an activity clearly disrupts Complainant’s business, as Internet users seeking Complainant’s products will be diverted to sites featuring competing products. The Panel finds that this disruption of Complainant’s business and diversion of Internet users to Complainant’s competitors shows bad faith registration and use under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondents engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain name 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); 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)).
Respondent’s misspellings of Complainant’s marks in the disputed domain names capitalize on common mistakes made when searching for Complainant’s mark. The easy mistakes are intended to attract Internet users seeking Complainant’s products. When the Internet users are diverted to Respondent’s website and then click on any of the third-party links, it is presumed that Respondent is compensated on a pay-per-click basis. The Panel finds Respondent’s efforts to mislead Internet users and attract Complainant’s business in order to receive commercial gain constitute bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); 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 has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar disputed domain names. The Panel finds this practice of typosquatting is evidence by itself of bad faith registration and use under Policy ¶ 4(a)(iii). See, e.g., Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent had engaged in bad faith registration and use under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatologica.com> domain name was a “simple misspelling” of the complainant’s DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
The Panel finds 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 <hgottopic.com>, <horttopic.com>, <hotptopic.com>, <hottobic.com>, <hottooic.com>, <hottopioc.com>, <hottopiuc.com>, <hottopixc.com>, and <hottopuic.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 10, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum