Charlotte Russe Merchandising, Inc. v. CK Ventures Inc.
Claim Number: FA1004001319971
Complainant is Charlotte Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <charlotterue.com> and <charlotterusset.com>, registered with Nameview, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2010.
On April 29, 2010, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <charlotterue.com> and <charlotterusset.com> domain names are registered with Nameview, Inc. and that Respondent is the current registrant of the names. Nameview, Inc. has verified that Respondent is bound by the Nameview, Inc. 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 May 5, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 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@charlotterue.com and postmaster@charlotterusset.com by e-mail. Also on May 5, 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 27, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
A petition for panel to exercise its discretion under UDRP Rule 10 to give full consideration to response unintentionally filed late due to excusable neglect was filed May 28, 2010. Upon consideration, the Panel denies said Petition.
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <charlotterue.com> and <charlotterusset.com> domain names are confusingly similar to Complainant’s CHARLOTT RUSSE mark.
2. Respondent does not have any rights or legitimate interests in the <charlotterue.com> and <charlotterusset.com> domain names.
3. Respondent registered and used the <charlotterue.com> and <charlotterusset.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 specialty retailer of women’s clothing and accessories with over 500 stores and annual sales in excess of $820 million. Complainant owns several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its CHARLOTTE RUSSE mark (e.g., Reg. No. 2,414,477 issued on December 19, 2000).
Respondent, CK Ventures, Inc., registered the <charlotterusset.com> domain name on
March 6, 2006, and the <charlotterue.com>
domain name
on August 24, 2005. Respondent’s
disputed domain names resolve to websites that display various third-party links
to websites both in competition with, and unrelated to, Complainant’s business.
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 submits evidence to show that it owns numerous trademark registrations with the USPTO for its CHARLOTTE RUSSE mark (e.g., Reg. No. 2,414,477 issued on December 19, 2000). Complainant contends that its trademark registration need not be within the country where Respondent resides for purposes of Policy ¶ 4(a)(i) analysis. The Panel finds that Complainant has established rights in the CHARLOTTE RUSSE mark under Policy ¶ 4(a)(i) through its trademark registrations with the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant argues that Respondent’s <charlotterue.com> and <charlotterusset.com> domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark. Complainant contends that both disputed domain names contain a misspelled version of its mark, absent the space between the terms of the mark, and the addition of the generic top-level domain (“gTLD”) “.com.” Specifically, Complainant notes that the <charlotterue.com> domain name omits both occurrences of the letter “s” from its mark, while the <charlotterusset.com> domain name adds the letter “t” to its mark. The Panel finds that Respodent’s disputed domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark under Policy ¶ 4(a)(i) where both domain names: (1) contain misspelled versions of Complainant’s mark; (2) omit the space between the terms of Complainant’s mark; and (3) add the gTLD “.com.” See 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”); see also 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 Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights or legitimate interests in the <charlotterue.com> and <charlotterusset.com> domain names. Complainant is required to make a prima facie case in support of these allegations. After Complainant has produced a prima facie case the burden of proof shifts to Respondent to offer evidence that it does possess rights or legitimate interests in the disputed domain names. See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”). The Panel finds that the Complainant has produced a prima facie case. Due to the Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the disputed domain names. See 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.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
Complainant alleges that Respondent does not have authorization to use Complainant’s mark and that Respondent is not commonly known by the disputed domain names. Complainant submits the WHOIS information as evidence that Respondent is not commonly known by the disputed domain names. The WHOIS information for the <charlotterue.com> and <charlotterusset.com> domain names identifies “charlotterue.com” and “charlotterusset.com,” respectively, as the registrants of the domain names. Complainant contends that although it appears that Respondent is commonly known by the disputed domain names that Respondent has not conducted any business under either name. The Panel finds that Respondent is not commonly known by the <charlotterue.com> and <charlotterusset.com> domain names under Policy ¶ 4(c)(ii) where Respondent has not offered any evidence to affirm that it is commonly known by the disputed domain names or to dispute the evidence and assertions of Complainant. See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”).
Complainant further asserts that Respondent’s disputed
domain names are not being used in connection with a bona fide offering of goods or services, nor is Respondent making a
legitimate noncommercial or fair use of the domain names. Complainant alleges that Respondent’s
disputed domain names resolve to websites that display click-through links to
websites and businesses, both in competition with, and unrelated to,
Complainant for profit. The Panel finds
that Respondent’s use of the disputed names to redirect Internet users to
websites in competition with Complainant as well as websites unrelated to
Complainant’s business, presumably for financial gain, does not constitute 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 Jerry Damson, Inc. v.
Complainant further argues that Respondent is taking
advantage of Internet users that are trying to reach Complainant’s official
<charlotterusse.com> and <charlotte-russe.com> domain names by
using common misspellings of Complainant’s CHARLOTTE RUSSE mark in Respondent’s
disputed domain names. The Panel finds
that Respondent’s engagement in
typosquatting is further evidence of Respondent’s lack of 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.
Complainant alleges that Respondent is using the disputed
domain names to display advertisements and links to websites and businesses in
competition with and unrelated to Complainant, and that this type of use by
Respondent results in a disruption of business for Complainant. Complainant further alleges that Respondent’s
diversion of Internet users away from Complainant and to Complainant’s
competitors is evidence of bad faith registration and use. The Panel finds that Respondent’s use of the
disputed domain names to operate pay-per-click advertising websites that
display links and advertisements to Complainant’s competitors is evidence of
bad faith registration and use under Policy ¶ 4(b)(iii). See
Complainant further alleges that Respondent’s registration and use of the <charlotterue.com> and <charlotterusset.com> domain names was to intentionally attract Internet users to its websites where it collects click-through fees from businesses advertised thereon. The Panel finds that Respondent’s registration of the confusingly similar disputed domain names was made in bad faith under Policy ¶ 4(b)(iv) where Respondent is operating advertising or link directory websites and presumably receives click-through fees for the links displayed on those websites. See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites).
The Panel has already determined that Respondent engaged in
typosquatting through its registration and use of the <charlotterue.com> and <charlotterusset.com>
domain names. The Panel finds that
Respondent’s use of common misspellings of Complainant’s mark within the
disputed domain names is evidence itself 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 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 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 <charlotterue.com> and <charlotterusset.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: June 9, 2010
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