Meadowbrook
LLC v.
Claim Number: FA1003001312199
Complainant is Meadowbrook
LLC (“Complainant”), represented by Brody
Stout, of CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 8, 2010.
On March 10, 2010, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names are registered with Compana, LLC and that Respondent is the current registrant of the names. 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 March 10, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@landofnd.com, postmaster@landofnot.com, postmaster@landsofnod.com, postmaster@lanfofnod.com, and postmaster@lanofnod.com by e-mail. Also on March 10, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 6, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names are confusingly similar to Complainant’s THE LAND OF NOD mark.
2. Respondent does not have any rights or legitimate interests in the <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names.
3. Respondent registered and used the <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Meadowbrook LLC, operates a retail and online catalog store specializing in children’s furniture and child-related house wares. Complainant holds several registrations for the THE LAND OF NOD mark used in connection with these goods with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,224,541 issued February 13, 1996).
Respondent registered the <landsofnod.com> domain name on January 10, 2005, the <landofnd.com>
domain name on February 19, 2005, the <lanofnod.com>
domain name on May 17, 2005, the <landofnot.com> on July 1, 2005, and the <lanfofnod.com>
domain name on January 30, 2006. All
of the disputed domain names resolve to similar websites that display
hyperlinks to third-party websites, some of which directly compete with
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.
The Panel finds that Complainant has established rights in
the THE LAND OF NOD mark under Policy ¶ 4(a)(i) through its several
registrations with the USPTO (e.g.,
Reg. No. 2,224,541 issued February 13, 1996).
See Miller Brewing
Each of the disputed domain names contain misspellings of Complainant’s THE LAND OF NOD mark, deleting the word “the,” and add the generic top-level domain (“gTLD”) “.com.” The Panel finds that these alterations to Complainant’s mark do not sufficiently distinguish the disputed domain names from Complainant’s mark. Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s THE LAND OF NOD mark under Policy ¶ 4(a)(i). See Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such “generic” typos do not change respondent’s infringement on a core trademark held by the complainant); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Initially, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain names. Upon making this showing, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain names. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). The burden now shifts to Respondent, from whom no response was received. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes 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 rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). Although Respondent did not assert that it has rights or legitimate interests in the disputed domain names, the Panel elects to examine the record under Policy ¶ 4(c).
The WHOIS information for the <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names lists “Texas International Property Associates - NA NA” as the registrant, which does not indicate that Respondent is commonly known by the disputed domain names. Respondent has not presented any evidence to suggest that Policy ¶ 4(c)(ii) applies in this case. Moreover, Complainant asserts that it has not authorized Respondent to use the THE LAND OF NOD mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also 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).
Respondent’s <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names resolve to similar websites that display hyperlinks to third-party websites, some of which directly compete with Complainant. The Panel presumes that Respondent receives click-through fees for these hyperlinks. Therefore, the Panel finds that Respondent’s use of the <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); 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 in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Finally, the Panel
finds that Respondent is engaged in typosquatting because Respondent is taking
advantage of common misspellings of Complainant’s THE LAND OF NOD mark.
Therefore, the Panel finds that Respondent’s engagement in typosquatting
is further 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 that Policy ¶ 4(a)(ii)
has been satisfied.
Since Respondent registered the disputed domain names during a period from 2005 to 2006, the disputed domain names have resolved to similar websites that feature hyperlinks to third-party websites, some of which directly compete with Complainant. The Panel finds that Respondent’s use of the disputed domain names disrupts Complainant’s business. The Panel further finds that such disruption constitutes bad faith registration and use under 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 Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
The Panel finds that Respondent’s use of the confusingly
similar disputed domain
names creates a likelihood of confusion as to Complainant’s affiliation with
the disputed domain names. The Panel
further finds that Respondent is commercially gaining from this likelihood of
confusion through its presumed receipt of click-through fees, which constitutes
bad faith registration and use under Policy ¶ 4(b)(iv). See
The Panel finds that Respondent’s aforementioned engagement
in typosquatting is further evidence of bad faith registration and use under
Policy ¶ 4(a)(iii).
See 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)); 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).”).
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 <landofnd.com>, <landofnot.com>, <landsofnod.com>, <lanfofnod.com>, and <lanofnod.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: April 16, 2010
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