Stump Printing Company, Inc. v. Transure Enterprise Ltd c/o Host Master
Claim Number: FA1004001318873
Complainant is Stump Printing Company, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <shindingz.com>, registered with Above.com Pty Ltd.
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 April 13, 2010.
On April 14, 2010, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <shindingz.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.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 April 19, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 10, 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@shindingz.com. Also on April 19, 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 May 17, 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:
Complainant holds a trademark
registration for its SHINDIGZ.COM mark with the United States Patent and
Trademark Office (“USPTO”) (Reg. No. 2,386,438, issued September 12, 2000) in
connection with mail order services featuring all-occasion favors, invitations,
costumes, decorations, supplies and event planning information.
Respondent registered the
disputed domain name on September 4, 2009.
The disputed domain name
resolves to a website featuring generic links to third-party sites, some of
which directly compete with Complainant’s business.
Respondent’s <shindingz.com> domain name is confusingly similar to Complainant’s SHINDIGZ.COM mark.
Respondent is not sponsored
by or legitimately affiliated with Complainant in any way, nor has Complainant
given Respondent permission to use Complainant’s mark in a domain name.
Respondent is using a typographical error in the contested domain name to redirect Internet users to Respondent’s website and profiting through the resultant collection of pay-per-click fees.
Respondent does not have any rights to or legitimate interests in the <shindingz.com> domain name.
Respondent registered and uses the <shindingz.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 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 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:
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 has established
rights in its SHINDIGZ.COM mark pursuant to Policy ¶ 4(a)(i) through its
trademark registration with the USPTO. See
Trip Network Inc. v. Alviera, FA
914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that a complainant’s trademark
registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to
establish its rights in the marks pursuant to Policy ¶ 4(a)(i)); see also Reebok
Int’l Ltd. v.
Respondent’s <shindingz.com>
domain name
is confusingly similar to Complainant’s SHINDIGZ.COM mark under Policy ¶
4(a)(i). The domain name merely adds the
letter “n” to Complainant’s mark. Such a
misspelling of the mark in forming the domain name through the addition of
single letter creates a confusing similarity between the domain name and the
mark. See Microsoft Corp. v. Domain Registration
The mere addition of a single letter to the
complainant’s mark does not remove the respondent’s domain names from the realm
of confusing similarity in relation to the complainant’s mark pursuant to
Policy ¶ 4(a)(i).
Therefore, pursuant
to Policy ¶ 4(a)(i), the Panel finds that Respondent’s
domain name <shindingz.com> is
confusingly similar to Complainant’s SHINDIGZ.COM mark.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must first make out a prima facie case in support of its contention, at which point the burden shifts to Respondent to prove that it has rights to or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that:
complainant must first
make a prima facie case that
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to respondent to show it
does have rights or legitimate interests.
See also 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 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 or legitimate interests in a domain name).
Complainant has established a prima facie case in support of its contentions under this head of
the Complaint, and Respondent has failed to submit a Response to these
proceedings. The Panel can infer from
Respondent’s failure to submit a Response that it lacks rights to or legitimate
interests in the disputed domain name. See 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.
Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine if there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by noting that the WHOIS information for the disputed domain name lists the registrant only as “Transure Enterprise Ltd c/o Host Master.” Moreover, Complainant asserts that Respondent is not sponsored by or legitimately affiliated with Complainant in any way, nor has Complainant given Respondent permission to use Complainant’s mark in a domain name. On this record, we are constrained to conclude that Respondent is not commonly known by the disputed domain name so as to have demonstrated rights to or legitimate interests in the contested domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where the pertinent WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the disputed domain names, and where a complainant had not authorized that respondent to register a domain name containing its registered mark); see also 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 as there was no evidence in the record showing that that respondent was commonly known by that domain name, including the relevant WHOIS information, and where a complainant asserted that it did not authorize or license that respondent’s use of its mark in a domain name).
We also observe that Complainant alleges, and Respondent
does not deny, that Respondent’s domain name resolves to
a website featuring links to third-party sites, some of which directly compete
with Complainant’s business, and that Respondent presumably receives
pay-per-click fees from the displayed links.
Respondent’s use of the disputed domain name as alleged is not 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 Royal Bank of Scotland Grp plc
et al. v. Demand Domains, FA 714952 (Nat.
Arb. Forum Aug. 2, 2006) (finding that the operation of a
commercial web directory displaying links to third-party websites was not 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), where a respondent presumably received
“click-through” fees for each consumer it redirected to other websites); see
also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (concluding that using
a domain name confusingly similar to a complainant’s mark in order to divert
Internet users to competing websites 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)).
Finally under this head of the Complaint, Complainant argues, without objection from Respondent, that Respondent is using a typographical error in the contested domain name to redirect Internet users to Respondent’s website and profiting through the resultant collection of pay-per-click fees. This behavior constitutes typo-squatting, which further demonstrates that Respondent has no rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). 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 Microsoft Corp. v. Domain Registration
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s domain name resolves to a website displaying
third-party links to websites in direct competition with Complainant’s party
supply business. Respondent’s use of the
disputed domain name in this manner constitutes disruption of Complainant’s
business and stands as evidence of bad faith registration and use of the
contested domain name pursuant to Policy ¶ 4(b)(iii). See
Respondent uses the disputed
domain name to attract to its website Internet users seeking information
regarding Complainant’s products. In the
process, Respondent displays links to third-party websites. Respondent presumably receives pay-per-click
fees from these third-party links. This is
sufficient evidence of Respondent’s bad faith registration and use of the
disputed domain name pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003):
Respondent's prior use of the <mailonsunday.com>
domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the
domain name provided links to Complainant's competitors and Respondent
presumably commercially benefited from the misleading domain name by receiving
‘click-through-fees.’
Respondent has also engaged in the practice of typo-squatting
by using an intentional misspelling of Complainant’s SHINDIGZ.COM mark to
misdirect Internet users to its own website.
Typo-squatting is further evidence of bad faith registration and use of
the contested domain name pursuant to Policy ¶ 4(a)(iii). See Microsoft Corp. v.
Domain Registration
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 thus finds that Policy ¶ 4(a)(iii) has been satisfied.
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 <shindingz.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 28, 2010
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