Claim Number: FA1002001307870
Complainant is Fredericks of Hollywood Group, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ferdericks.com>, registered with Fabulous.com Pty Ltd.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 12, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 16, 2010.
On February 14, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <ferdericks.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 February 17, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 9, 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@ferdericks.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 15, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <ferdericks.com> domain name is confusingly similar to Complainant’s FREDERICKS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <ferdericks.com> domain name.
3. Respondent registered and used the <ferdericks.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Frederick’s of Hollywood Group, Inc., is a leading retailer of women’s clothing and lingerie. Complainant owns trademark registrations for the FREDERICKS.COM mark with the United States Patent and Trademark Office (“USPTO”) in connection with its online retail services focusing on women’s clothing, lingerie and related accessories (e.g., Reg. No. 2,403,596 issued November 14, 2000).
Respondent, Mooney Internet Corp c/o Robert Mooney, registered the <ferdericks.com> domain name on May 7, 2004. Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program.
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 trademark registrations for the
FREDERICKS.COM and related marks with the USPTO (e.g., Reg. No. 2,403,596 issued November 14, 2000). The Panel finds that a trademark registration
with the USPTO suffices to establish Complainant’s rights in the mark pursuant
to Policy ¶ 4(a)(i). See Reebok
Int’l Ltd. v.
Complainant contends that Respondent’s <ferdericks.com> disputed domain name is confusingly similar to Complainant FREDERICKS.COM mark. The only difference between Complainant’s mark and Respondent’s disputed domain name is that the disputed domain transposes the “r” and the “e.” The Panel finds that such a minor change, a single instance of transposed letters, is insufficient to prevent confusing similarity for the purposes of Policy ¶ 4(a)(i). See 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 Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark). Therefore, the Panel finds that Respondent’s <ferdericks.com> disputed domain name is confusingly similar to Complainant FREDERICKS.COM mark.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant sets forth a prima facie case, it becomes the responsibility of Respondent to demonstrate its rights and legitimate interests in the disputed domain name according to Policy ¶ 4(c). The Panel finds that Complainant has adequately presented a prima facie case in these proceedings and that Respondent, in failing to respond, has failed to meet its burden in showing rights and legitimate interests. Accordingly, the Panel may assume that Respondent lacks rights and legitimate interests in the disputed domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”); see also Branco do Brasil S.A. v. Sync Tech., D2000-0727 (WIPO Sept. 1, 2000) (“By its default, Respondent has not contested the allegation . . . that the Respondent lacks any rights or legitimate interests in the domain name. The Panel thus assumes that there was no other reason for the Respondent having registered <bancodobrasil.com> but the presumably known existence of the Complainant’s mark BANCO DO BRASIL”). The Panel elects, however, to consider the evidence presented in light of the Policy ¶ 4(c) factors to determine if Respondent has rights and legitimate interests in the disputed domain name.
Complainant further contends that Respondent is not commonly known by the disputed domain name and thus has no rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). The WHOIS information for the disputed domain name lists the registrant as “Mooney Internet Corp.,” which is evidence that Respondent is not commonly known by the disputed domain name. In light of this evidence and the lack of other evidence showing that Respondent is commonly known by the disputed domain name, the Panel finds that Respondent has no rights and legitimate interests in the disputed domain under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Respondent is a member of Complainant’s affiliate program
and uses the disputed domain name which differs from Complainant’s mark by only
one letter to redirect Internet users to Complainant’s own site. The Panel finds that using a very similar
misspelling of Complainant’s mark as the disputed domain name in order to
redirect Internet users and profit from Complainant’s affiliate program 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 name pursuant to Policy ¶ 4(c)(iii). See Sports
Complainant asserts that Respondent’s disputed domain name intentionally uses a common typographical error in Complainant’s mark in order to direct Internet users who make a typing mistake through Respondent’s site on their way to Complainant’s site. The Panel finds this practice constitutes typosquatting, which is evidence Respondent lacks rights and legitimate interests in the disputed domain name. See Amazon.com, Inc. v. J J Domains, FA 514939 (Nat. Arb. Forum Sept. 2 2005) (“respondent lacks rights and legitimate interests in the <www-amazon.com> domain name because respondent's addition of the prefix "www-" to complainant's AMAZON.COM mark constitutes typosquatting.”); 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s confusingly similar disputed domain name redirects Internet users to Complainant’s own site by way of Complainant’s affiliate program. Such an activity disrupts Complainant’s business as it hinders Internet users making a simple typing mistake from arriving at Complainant’s webpage directly and costs the Complainant affiliate fees despite Respondent’s misuse of the program. The Panel finds that this disruption of Complainant’s business and misuse of an affiliate program show bad faith registration and use according to Policy ¶ 4(b)(iii). See Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the complainant's marks suggests that the respondent, the complainant’s competitor, registered the names primarily for the purpose of disrupting the complainant's business).
Respondent’s disputed domain name uses a very similar
misspelling of Complainant’s mark to attract Internet users seeking
Complainant. By subsequently redirecting
those Internet users to Complainant’s own website through Complainant’s
affiliate program, Respondent profits by way of Complainant’s affiliate
fees. The Panel finds Respondent’s
efforts to capitalize on a common misspelling of Complainant’s mark in order to
attract Internet users for Respondent’s commercial gain constitutes bad faith
registration and use according to Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston,
FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is
appropriating the complainant’s mark in a confusingly similar domain name for
commercial gain, which is evidence of bad faith registration and use pursuant
to Policy ¶4(b)(iv).”); see also Deluxe Corp. v.
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar disputed domain name. The Panel finds this typosquatting is evidence in and of itself of bad faith registration and use under Policy ¶ 4(a)(iii). See 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); see also 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)).
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 <ferdericks.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 29, 2010
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