Charlotte Russe Merchandising, Inc. v.
Claim Number: FA1004001319856
Complainant is Charlotte Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <chalotterusse.com> and <charleotterusse.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2010.
On April 20, 2010, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <chalotterusse.com> and <charleotterusse.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 April 21, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 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@chalotterusse.com and postmaster@charleotterusse.com. Also on April 21, 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 19, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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" 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <chalotterusse.com> and <charleotterusse.com> domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark.
2. Respondent does not have any rights or legitimate interests in the <chalotterusse.com> and <charleotterusse.com> domain names.
3. Respondent registered and used the <chalotterusse.com> and <charleotterusse.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Charlotte Russe Merchandising, Inc., holds trademark registrations for the CHARLOTTE RUSSE marks in association with its retail store services specializing in apparel, jewelry, cosmetics, handbags, and hair ornaments. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHARLOTTE RUSSE mark (e.g., Reg. No. 2,414,477 issued Dec. 19, 2000).
Respondent, Texas
International Property Associates - NA NA, registered the <chalotterusse.com> domain name on
December 10, 2004 and the <charleotterusse.com>
domain name on June 21, 2005.
Respondent’s disputed domain names each resolve to directory websites
featuring generic pay-per-click links to other third party websites, some of
which compete with Complainant.
Respondent has been the
respondent in numerous other UDRP proceedings in which the domain names were
transferred to the Complainants. See Countrywide
Fin. Corp. v.
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 USPTO trademark registrations for
the CHARLOTTE RUSSE mark (e.g., Reg.
No. 2,414,477 issued Dec. 19, 2000). The
Panel finds that Complainant has sufficiently established its rights in the
CHARLOTTE RUSSE mark by virtue of these USPTO trademark registrations. See
Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum
Dec. 21, 2006) (finding that the Complainant’s federal trademark registration
established its rights in the mark under Policy ¶ 4(a)(i));
see also
Complainant argues that Respondent’s <chalotterusse.com> and <charleotterusse.com> disputed domain
names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark because
both disputed domain names differ from Complainant’s mark by only one
letter: the <chalotterusse.com> disputed domain name omits the letter “r” and
the <charleotterusse.com>
disputed domain name introduces an extra letter “e.” Both disputed domain names also have the
appended generic top-level domain (“gTLD”) “.com.” The Panel finds that minor misspellings such
as the omission or introduction of a single letter do not affect Complainant’s
mark substantially enough to prevent confusing similarity under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb.
Forum Aug. 4, 2004) (“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).”); see also Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the
<pfzer.com> domain name was confusingly similar to the complainant’s
PFIZER mark, as the respondent simply omitted the letter “i”). The Panel also finds that added gTLDs are not
considered during a Policy ¶ 4(a)(i) analysis as they are required elements of
domain names. See Rollerblade, Inc.
v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of
the domain name such as “.net” or “.com” does not affect the domain name for
the purpose of determining whether it is identical or confusingly similar); see also Gardline Surveys Ltd. v. Domain
Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a
top-level domain is irrelevant when establishing whether or not a mark is
identical or confusingly similar, because top-level domains are a required
element of every domain name.”).
Therefore, the Panel finds that Respondent’s <chalotterusse.com> and <charleotterusse.com>
disputed domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE
mark.
The Panel finds Policy ¶
4(a)(i) has been satisfied.
Complainant alleges Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has put forth a prima facie case, the burden shifts to Respondent to demonstrate its rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has adequately established a prima facie case in these proceedings. Since Respondent has failed to respond to the allegations against it, the Panel may assume that Respondent lacks any rights or legitimate interests in the disputed domain names. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Am. Express Co. v. Fang 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.”). The Panel elects, however, to consider the evidence in record in light of the Policy ¶ 4(c) factors to determine if Respondent has any rights or legitimate interests in the disputed domain names.
Complainant contends that Respondent is not commonly known by the disputed domain names because the WHOIS information for the disputed domain names lists the registrants as “Texas International Property Associates.” As the WHOIS information fails to reflect any association between the disputed domain names and Respondent, the Panel finds that Respondent is not commonly known by the disputed domain names and accordingly lacks rights and interests in the disputed domain names under 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 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 respondent was commonly known by the disputed domain name).
Respondent’s disputed domain names resolve to directory websites displaying generic pay-per-click links to third party websites, some of which compete with Complainant. The Panel finds that Respondent’s use of the disputed domain names in this manner does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to Policy ¶ 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 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)).
Complainant contends that Respondent is capitalizing on
common misspellings or typographical errors of Complainant’s CHARLOTTE RUSSE
mark to misdirect Internet users seeking Complainant’s online presence. The Panel finds this practice constitutes
typosquatting, which serves as 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent has engaged in a pattern of bad faith
registrations as evidenced by several adverse UDRP proceedings against
Respondent. See Countrywide Fin. Corp. v.
Respondent’s disputed domain names resolve to directory websites with pay-per-click links that redirect Internet users to other Internet sites, some of which compete with Complainant. Such an activity disrupts Complainant’s business as Internet users seeking Complainant may end up diverted to competitors’ sites. The Panel finds that Respondent’s efforts to disrupt Complainant’s business in this manner reveal bad faith registration and use according to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also 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)).
Respondent’s misspellings of Complainant’s mark in the disputed domain names are intended to attract Internet users making common mistakes when searching for Complainant on the Internet. When the Internet users arrive at Respondent’s directory sites and click on any of the advertised links, Respondent presumably receives compensation in the form of click-through fees. The Panel finds Respondent’s attempts to attract traffic through typographical errors and misspellings of Complainant’s mark for its own commercial gain demonstrate 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 Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar disputed domain names. The Panel finds this practice of typosquatting is 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 Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatologica.com> domain name was a “simple misspelling” of the complainant’s DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
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 <chalotterusse.com> and <charleotterusse.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 25, 2010
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