James L. Throneburg v. Transure Enterprise Ltd a/k/a Host Master
Claim Number: FA1003001316450
Complainant is James
L. Throneburg (“Complainant”), represented by Brian M. Davis,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <throlo.com>, registered with Above.com.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 31, 2010.
On March 31, 2010, Above.com confirmed by e-mail to the National Arbitration Forum that the <throlo.com> domain name is registered with Above.com and that Respondent is the current registrant of the name. Above.com has verified that Respondent is bound by the Above.com 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 April 2, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 22, 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@throlo.com. Also on April 2, 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 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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:
Since June 17, 1963, Complainant has used the THORLO mark, in conjunction with THOR·LO, Inc., to market and sell socks.
Complainant holds a trademark registration with the United States Patent and Trademark Office ("USPTO") for the THORLO mark (Reg. No. 1,119,696, issued June 5, 1979).
Respondent is not authorized to use Complainant’s THORLO mark.
Respondent registered the <throlo.com> domain name on November 13, 2009.
The disputed domain name resolves to a website featuring hyperlinks to third-party websites that offer sock products in competition with the business of Complainant.
Respondent receives click-through fees from visits to these hyperlinks by Internet users.
After Complainant contacted Respondent about the transfer of the <throlo.com> domain name, Respondent offered to sell the disputed domain name to Complainant for $500.00.
Respondent’s <throlo.com> domain name is confusingly similar to Complainant’s THORLO mark.
Respondent’s use of the <throlo.com> domain name constitutes typo-squatting, because the domain name is a deliberately chosen common misspelling of Complainant’s THORLO mark.
Respondent does not have any rights to or legitimate interests in the <throlo.com> domain name.
Complainant’s business is disrupted because Internet users interested in purchasing socks from it may instead purchase socks from its competitors as a result of Respondent’s use of a domain name which is confusingly similar to the THORLO mark.
Respondent registered and uses the <throlo.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant resides in the
Complainant claims that Respondent’s <throlo.com> domain name is confusingly similar to Complainant’s THORLO trademark. The domain name contains a common misspelling of Complainant’s mark created by transposing the letter “r” with the letter “o.” The transposition of two letters in forming the domain name from the mark fails to distinguish the domain name adequately from the mark. See Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to a complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark); 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 a complainant’s DELTA mark).
Respondent also adds the generic top-level domain (“gTLD”) “.com” to Complainant’s THORLO mark in forming the disputed domain name. The addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis because all domain names are required to contain a top-level domain. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Thus, the Panel concludes that Respondent’s <throlo.com> domain name is confusingly similar to Complainant’s THORLO mark pursuant to Policy ¶ 4(a)(i).
Complainant claims that Respondent lacks rights to and legitimate interests in the <throlo.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to a respondent to prove that it does have rights to or legitimate interests in a contested domain. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make out a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have rights to or legitimate interests in a domain name).
Complainant has made out the requisite prima facie case. Owing to Respondent’s failure to respond to the Complaint, we may therefore presume that Respondent does not have rights to or legitimate interests in the <throlo.com> domain name domain name. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because a respondent failed to submit a Response:
Complainant’s
submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel
accepts as true all reasonable allegations . . . unless clearly contradicted by
the evidence.
Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by observing that Complainant asserts, without objection from Respondent, that Respondent is not authorized to use Complainant’s THORLO mark. Moreover, the pertinent WHOIS information identifies the domain name registrant only as “Transure Enterprise Ltd a/k/a Host Master,” which does not resemble the <throlo.com> domain name. On this record, we must conclude that Respondent is commonly known by the <throlo.com> domain name so as to have demonstrated rights to or legitimate interests in the contested domain name sufficient to satisfy the provisions of Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name where there was no evidence in the record showing that that respondent was commonly known by that domain name, and where a complainant asserted that it did not authorize or license that respondent’s use of its mark in a domain name); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that a respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed as the registrant of the disputed domain names only Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't, and there was no other evidence in the record to suggest that that respondent was commonly known by the domain names in dispute).
We also note that there is no dispute as to Complainant’s allegation to the effect that Respondent uses the <throlo.com> domain name to resolve to a website containing lists of hyperlinks to third-party websites, and that some of these hyperlinks resolve to Complainant’s business competitors. Complainant further alleges, without objection from Respondent, that Respondent receives click-through fees from visits to these hyperlinks by Internet users. Respondent’s use of the <throlo.com> domain name in the manner alleged is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights to and legitimate interests in the <bravoclub.com> domain name because that respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel found not 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)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007):
Respondent is using the…[contested]…domain
name to display a list of hyperlinks, some of which advertise Complainant and
its competitors’ products. The Panel
finds that this use of the disputed domain name does not constitute 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).
Complainant also alleges that Respondent’s use of the <throlo.com> domain name constitutes typo-squatting because the domain name is a deliberately chosen common misspelling of Complainant’s THORLO mark. Respondent does not deny this assertion. The domain name merely transposes the letters “r” and “o” in Complainant’s mark. In the circumstances here presented, we agree. See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003), finding that the domain names <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> were intentional misspellings of a complainant's LTD COMMODITIES mark and that this:
‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names.
See also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that a respondent lacked rights to or legitimate interests in 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’”).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <throlo.com> domain name resolves to a website featuring hyperlinks to the websites of Complainant’s competitors in the sock industry. Complainant claims that its business is disrupted because Internet users interested in purchasing socks from Complainant may instead purchase socks from its competitors as a result of Respondent’s use of the confusingly similar disputed domain name. We concur, and we therefore conclude that Respondent’s use of the <throlo.com> domain name as alleged evidences bad faith registration and use of the contested domain name pursuant to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007):
This
Panel concludes that by redirecting Internet users seeking information on
Complainant’s educational institution to competing websites, Respondent has
engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
See also David Hall
Rare Coins v.
Respondent presumably benefits from its use of the <throlo.com> domain name through the receipt of click-through or similar fees from visits to its resolving website by Internet users interested in Complainant, who may become confused as to the possibility of Complainant’s sponsorship of or affiliation with the disputed domain name, resolving website, and related hyperlinks. Respondent’s use of the <throlo.com> domain name in the manner alleged constitutes evidence of bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that a respondent’s use of the <arizonashuttle.net> domain name, which contained a complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to that respondent’s website offering competing travel services, came within the provisions of Policy ¶ 4(b)(iv)); see also Dell Inc. v. Innervision Web Solutions, FA 445601 (Nat. Arb. Forum May 23, 2005) (finding evidence of bad faith under Policy ¶ 4(b)(iv) where a respondent used the <dellcomputerssuck.com> domain name to divert Internet users to that respondent’s website, which offered computer products and services in competition with the business of a complainant).
Finally under this head of the Complaint, Respondent’s use
of the <throlo.com> domain name constitutes typo-squatting. The domain name is comprised merely of a
common misspelling of Complainant’s THORLO mark. Respondent’s use of the domain to redirect
Internet users to Respondent’s website for Respondent’s commercial gain
constitutes bad faith registration and use of the domain pursuant to Policy ¶
4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that a respondent engaged in
typo-squatting, which is evidence of bad faith registration and use of a domain
name under Policy ¶ 4(a)(iii)); see also Microsoft Corp. v. Domain Registration
For these reasons, the Panel determines that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <throlo.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 3, 2010
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