Eggspectation Canada Inc. v.
Claim Number: FA1002001308107
Complainant is Eggspectation Canada Inc. (“Complainant”), represented by
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <eggsspectations.com>, registered with Compana, LLC.
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 February 15, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2010.
On February 24, 2010, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <eggsspectations.com> domain name is registered with Compana, LLC and that Respondent is the current registrant of the name. Compana, LLC has verified that Respondent is bound by the Compana, LLC 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 25, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 17, 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@eggsspectations.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 25, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <eggsspectations.com> domain name is confusingly similar to Complainant’s EGGSPECTATION mark.
2. Respondent does not have any rights or legitimate interests in the <eggsspectations.com> domain name.
3. Respondent registered and used the <eggsspectations.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Eggspectation Canada Inc., is the owner of a restaurant franchise named “Eggspectation.” Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its EGGSPECTATION mark (e.g., Reg. No. 2,825,323 issued on March 23, 2004). Complainant further submits that its mark is used in several registered domain names including, <eggspectation.ca>, <eggspectation.com>, and <eggspectation.net>.
Respondent registered the <eggsspectations.com> domain name on November 2, 2005. Respondent’s disputed domain name resolves to a website that displays third-party links to websites and businesses that are unrelated to Complainant.
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 several trademarks with the USPTO for its EGGSPECTATION mark (e.g., Reg. No. 2,825,323 issued on March 23, 2004). The Panel finds that Complainant has submitted sufficient evidence of its rights in the EGGSPECTATION mark for purposes of Policy ¶ 4(a)(i) through its trademark registration with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Complainant argues that the <eggsspectations.com> domain name is confusingly similar
to its EGGSPECTATION mark. Complainant
notes that the difference between its mark and the disputed domain name is the
addition of the letter “s” after the word “eggs,” and the addition of the
letter “s” after the term “spectation,” as well as the addition of the generic
top level domain (“gTLD”) “.com.” The
Panel finds that the addition of letters to a mark as well as the addition of the
gTLD “.com” is not sufficient to distinguish the disputed domain name from
Complainant’s mark under Policy ¶ 4(a)(i). See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant submits arguments that Respondent does not have rights or legitimate interests in the <eggsspectations.com> domain name. Complainant must develop a prima facie case to show that Respondent does not have rights or legitimate interests in the disputed domain name. Upon producing a prima facie case the burden of proof shifts to Respondent to submit evidence that it does hold rights and legitimate interests in the disputed domain name. The Panel finds Complainant has adequately established a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not possess rights or legitimate interests in the disputed domain name. The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 2, 2002) (“Because Complainant’s submissions constitute a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its right or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am. Express Co. v. Fan 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.”).
Complainant argues that Respondent is not commonly known by the <eggsspectations.com> domain name, nor has Complainant granted Respondent permission to use its mark. The WHOIS information does not identifies “Texas International Property Associates” as the registrant of the disputed domain name, and Respondent has not offered any evidence showing that it is commonly known by the <eggsspectations.com> domain name. The Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name for purposes of Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); 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’s disputed domain name resolves to a website that
displays third-party links to websites and businesses that are unrelated to
Complainant’s restaurant business.
Complainant argues that this use is not in connection with a bona fide offering of goods or services or
a noncommercial or fair use. The Panel
finds that Respondent’s use of the <eggsspectations.com>
domain name to display third-party links to websites unrelated to Complainant,
presumably for financial gain, is not in connection with a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen,
FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s
use of a domain name to redirect Internet users to websites unrelated to a
complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Constellation Wines
Respondent is taking advantage of Internet users that are
trying to reach Complainant’s website by using common misspellings of the
Complainant’s EGGSPECTATION mark and its several registered domain names
including <eggspectation.com>. The
Panel finds that Respondent’s engagement in what is commonly referred to as
typosquatting is evidence that Respondent lacks any rights or legitimate
interests in the disputed domain names under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent’s use of the disputed domain name to attract Internet users to its website by using a confusingly similar domain name is evidence of bad faith registration and use. Complainant contends that Respondent receives click-through fees related to the third-party links displayed on its website that resolves from the <eggsspectations.com> domain name. The Panel finds that Respondent’s diversion of Internet users attempting to reach Complainant’s business to its website where it displays unrelated third-party links for commercial gain is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
The Panel has already determined that Respondent has engaged
in typosquatting. This practice has been
found to constitute evidence by 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 Microsoft Corp. v.
Domain Registration
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 <eggsspectations.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: April 8, 2010
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