Charlotte Russe Merchandising, Inc. v. Purple Bucquet c/o Purple
Claim Number: FA1004001319965
Complainant is Charlotte Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Purple Bucquet c/o Purple (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <charelotterusse.com> and <charlottereusse.com>, registered with Power Brand Center 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2010.
On April 23, 2010, Power Brand Center LLC confirmed by e-mail to the National Arbitration Forum that the <charelotterusse.com>and <charlottereusse.com> domain names are registered with Power Brand Center LLC and that Respondent is the current registrant of the names. Power Brand Center LLC has verified that Respondent is bound by the Power Brand Center 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 28, 2010, the Forum served the Complaint and all annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 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@charelotterusse.com and postmaster@charlottereusse.com. Also on April 28, 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 25, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <charelotterusse.com> and <charlottereusse.com> domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark.
2. Respondent does not have any rights or legitimate interests in the <charelotterusse.com> and <charlottereusse.com> domain names.
3. Respondent registered and used the <charelotterusse.com> and <charlottereusse.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Charlotte Russe
Merchandising, Inc., is a mall-based retailer of apparel and accessories
primarily designed for young women in their teens and twenties. Complainant owns multiple United States
Patent and Trademark Office (“USPTO”) registered trademarks for the CHARLOTTE
RUSSE marks (e.g., Reg. No. 1,485,692
issued April 19, 1988).
Respondent, Purple Bucquet
c/o Purple, registered the <charelotterusse.com>
domain name on February 21, 2006 and the <charlottereusse.com> domain name on December 10, 2003. Both disputed domain names resolve to
directory websites featuring a variety of pay-per-click links to other
third-party sites, some competing 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.
Complainant has federal trademark registrations for the
CHARLOTTE RUSSE marks with the USPTO (e.g.,
Reg. No. 1,485,692 issued Apr. 19, 1988).
USPTO trademark registrations allow the Panel to find that Complainant
has rights in the CHARLOTTE RUSSE mark for the purposes of Policy ¶ 4(a)(i),
regardless of whether the Respondent lives or operates where Complainant’s mark
is registered. See Bloomberg L.P. v. Johnston,
FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had
established rights in the BLOOMBERG mark through registration with the United
States Patent and Trademark Office); see
also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding
that it is irrelevant whether the complainant has registered its trademark in
the country of the respondent’s residence).
Respondent’s <charelotterusse.com> and <charlottereusse.com> disputed domain
names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark. Both of Respondent’s disputed domain names
attempt to distinguish themselves from Complainant’s mark by introducing an
extra letter “e” and adding the generic top-level domain (“gTLD”) “.com.” The Panel finds that the introduction of a
single additional letter does not distinguish the disputed domain names from
Complaiant’s mark 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 Victoria’s
Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding
that, by misspelling words and adding letters to words, a respondent does not
create a distinct mark but nevertheless renders the domain name confusingly
similar to the complainant’s marks). The Panel also finds that an added gTLD
serves no distinguishing function in a Policy ¶ 4(a)(i) analysis. 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). Therefore,
the Panel finds that Respondent’s <charelotterusse.com>
and <charlottereusse.com>
disputed domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE
mark.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant’s assertion that Respondent lacks rights and legitimate interests in the disputed domain names and its supporting evidence presented are sufficient to establish the prima facie case against Respondent required by Policy ¶ 4(a)(ii). Respondent’s failure to respond to Complainant’s Complaint indicates that Respondent has not met its burden in proving its rights and legitimate interests in the disputed domain names. As a result, the Panel finds that Complainant’s allegations are to be viewed as true and that the Panel can accordingly assume that Respondent lacks rights and legitimate interest in the disputed domain names under Policy ¶ 4(a)(ii). See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed). In an effort to fully examine this case, however, the Panel elects to consider the evidence presented in light of the Policy ¶ 4(c)(i) factors to make an independent determination of whether Respondent possesses rights and legitimate interests in the disputed domain names.
Complainant contends that Respondent lacks rights and legitimate interests because Respondent is not commonly known by the disputed domain names. The Panel finds that the WHOIS information for the disputed domain names does not reflect any nominal association between Respondent and the disputed domain names, supporting a finding that Respondent lacks rights and legitimate interests according to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
Complainant argues that Respondent’s disputed domain names resolve to directory pages filled with pay-per-click links for various third party websites, some of which compete with Complainant. The Panel finds that maintaining pay-per-click websites that resolve from disputed domain names that misappropriate Complainant’s mark does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶¶ 4(c)(i) and 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
Complainant asserts that Respondent introduces the extra
letter “e” into Complainant’s mark in the disputed domain names in order to
take advantage of Complainant’s fame and renown in the apparel industry and
common typographical errors made when customers are searching for
Complainant. The Panel finds this
attempt to intentionally benefit from Internet users’ typing mistakes
constitutes the practice of typosquatting, which is evidence that Respondent
lacks rights and legitimate interests in the disputed domain names pursuant to
Policy ¶ 4(a)(ii). See IndyMac Bank
F.S.B. v. Ebeyer, FA 175292
(Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and
legitimate interests in the 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’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14,
2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain names disrupt Complainant’s business because Respondent’s resolving websites advertise links to third-party websites, some of which offer goods competing with Complainant’s goods. The Panel finds Respondent’s efforts to divert Complainant’s customers to Complainant’s competitors indicates bad faith registration and use under 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)).
Complainant alleges that Respondent’s use of Complainant’s
mark with only a minimal change is an attempt to attract unsuspecting Internet
users, confuse them and convert them into profit for Respondent. The presence of pay-per-click links on
Respondent’s websites gives Respondent the opportunity to financially benefit
by redirecting Internet users to Respondent’s resolving websites if the
Internet users click on any of Respondent’s displayed links. The Panel finds Respondent’s activities
reveal an intent to attract traffic by creating confusion and subsequently
profit, which is evidence of 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).”).
Respondent is engaged in the practice of typosquatting through its use of the confusingly similar disputed domain names. The Panel finds that this is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in 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 <charelotterusse.com> and <charlottereusse.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 3, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum