Claim Number: FA1002001307871
Complainant is Fredericks of Hollywood Group, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <federicksofhollywood.com>, registered with Enom, Inc.
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 12, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <federicksofhollywood.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 February 18, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 10, 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@federicksofhollywood.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 16, 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
<federicksofhollywood.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <federicksofhollywood.com> domain name.
3. Respondent registered and used the <federicksofhollywood.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Fredericks of Hollywood Group, Inc., is a
leading retailer of women’s clothing, lingerie, and related accessories. Complainant owns trademark registrations with
the United States Patent and Trademark Office (“USPTO”) for the
Respondent, Nadeem Qadir, registered the <federicksofhollywood.com> domain name on August 7, 2002. Respondent’s disputed domain name resolves to a directory website featuring multiple links to Complainant and Complainant’s competitors.
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 trademarks for the
Complainant argues that Respondent’s <federicksofhollywood.com> disputed
domain name is confusingly similar to Complainant’s
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant argues that Respondent lacks rights and
legitimate interests in the disputed domain name. Policy ¶ 4(c) requires only that Complainant
make a prima facie case before the
burden then shifts to Respondent to demonstrate rights and legitimate interests
in the disputed domain name. The Panel
finds that Complainant has presented a prima
facie case in these proceedings. Due
to Respondent’s failure to respond to Complainant’s allegations against it, the
Panel may assume the allegations are true and conclude 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 Bank of
Am. Corp. v. McCall, FA 135012 (Nat. Arb.
Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its
failure to meet its burden, but also will be viewed as evidence itself that
Respondent lacks rights and legitimate interests in the disputed domain
name.”). The Panel elects, however, to
consider the evidence presented in light of the Policy ¶ 4(c) factors to
determine whether Respondent has rights and legitimate interests in the
disputed domain name.
Respondent asserts that the WHOIS
information for the disputed domain name lists the registrant as “Nadeem
Qadir.” Respondent contends that this
failure to identify the registrant by the disputed domain name indicates that
Respondent is not commonly known by, and lacks rights and legitimate interests
in, the disputed domain name. The Panel
finds that where the WHOIS information does not nominally associate the
Respondent/registrant with the disputed domain name, the evidence supports a
conclusion that Respondent is not commonly known by the disputed domain name
and accordingly lacks rights and legitimate interests pursuant to Policy ¶
4(c)(ii). See 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); see also
Complainant alleges that Respondent also lacks rights and legitimate interests in the disputed domain name because Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii). Respondent’s disputed domain name resolves to a directory website featuring multiple links to third-party websites, including those of Complainant and Complainant’s competitors. The Panel finds that using a disputed domain name in this manner only to redirect Internet users to other third-party websites is inconsistent with Policy ¶¶ 4(c)(i) or 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 noncommercial or fair use of the domain name); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant contends that Respondent uses a common misspelling of Complainant’s mark as the disputed domain name in order to capitalize on frequent mistakes made by Internet users seeking Complainant. The Panel finds this practice constitutes typosquatting, which is evidence that Respondent lacks rights and legitimate interests in the disputed domain name according to 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 Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name redirects Internet users
away from Complainant’s site to a website featuring links to Complainant along
with many of Complainant’s competitors.
Upon arriving at Respondent’s site, Complainant’s intending customers
could easily be diverted to a site other than Complainant’s, which results in
business disruption and potential profits lost to Complainant. The Panel finds Respondent’s efforts to
disrupt Complainant’s business in this way demonstrate bad faith registration
and use according 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
As Respondent’s disputed domain name is so similar to
Complainant’s mark, it is clearly intended to attract the unwary Internet user
who inadvertently makes a mistake when attempting to enter Complainant’s
mark. The disputed domain name then
resolves to a page where Respondent lists numerous links to third-party sites
with the intent of profiting from “pay-per-click” fees if any of the diverted
Internet users click on one of the links.
The Panel finds Respondent’s intentions to profit by fraudulently
attracting Complainant’s customers constitutes bad faith registration and use
pursuant to 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 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).
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 that typosquatting is evidence in and of itself of bad faith registration and use under Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
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 <federicksofhollywood.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 30, 2010
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