national arbitration forum

 

DECISION

 

Great Lakes Services, LLC v. N/A c/o Kun Da

Claim Number: FA1004001320130

 

PARTIES

Complainant is Great Lakes Services, LLC (“Complainant”), represented by Lori S. Meddings, of Michael Best & Friedrich LLP, Wisconsin, USA.  Respondent is N/A c/o Kun Da (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <greatwolflodge.net> and <greatwolfelogde.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on April 19, 2010.

 

On April 21, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <greatwolflodge.net> and <greatwolfelogde.com> domain names are registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the names.  Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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 26, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 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@greatwolflodge.net and postmaster@greatwolfelogde.com.  Also on April 26, 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 24, 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 (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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

Complainant has used the GREAT WOLF LODGE mark since 2000 in connection with entertainment services through hotels, resorts, water parks, convention facilities and conference center services.

 

Complainant has established rights in the GREAT WOLF LODGE service mark through its registration of the mark with the United States Patent and Trade Office (“USPTO”) (Reg. No. 2,643,850, issued October 29, 2002).

 

Respondent does not own any trademark registrations for the domain names, nor has Complainant consented to Respondent’s use of the domain names.

 

Respondent registered the <greatwolflodge.net> domain name on May 19, 2005 and the <greatwolfelogde.com> domain name on May 22, 2006.

 

The disputed domain names each resolve to websites that list hyperlinks to the website of Complainant, and to those of Complainant’s competitors, as well as to those of unrelated third-parties.

 

Respondent’s <greatwolflodge.net> domain name is identical to Complainant’s GREAT WOLF LODGE mark. Respondent’s <greatwolfelogde.com> domain name is confusingly similar to Complainant’s GREAT WOLF LODGE mark.

Respondent’s use of its <greatwolflodge.net> and <greatwolfelogde.com> domain names is not done in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.

 

Respondent does not have any rights to or legitimate interests in the domain names <greatwolflodge.net> and <greatwolfelogde.com>.

 

Respondent registered and uses the <greatwolflodge.net> and <greatwolfelogde.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(1)   the <greatwolflodge.net> domain name registered by Respondent is identical to a service mark in which Complainant has rights, and the <greatwolfelogde.com> domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights;

(2)   Respondent has no rights to or legitimate interests in respect of either of the disputed domain names; and

(3)   the domain names were registered and are being used by Respondent in bad faith.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

Complainant’s registration of its GREAT WOLF LODGE service mark with the USPTO is sufficient to establish its rights in the mark for purposes of a Policy ¶ 4(a)(i) analysis. See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that a complainant had established rights in the BLOOMBERG mark through its registration with the United States Patent and Trademark Office);  see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether a complainant has registered its mark in the country in which a respondent resides, it being sufficient that a complainant can establish rights in a mark in some jurisdiction).

 

Respondent’s <greatwolflodge.net> domain name is identical to Complainant’s GREAT WOLF LODGE mark because alterations consisting of the removal of spaces between the terms of a mark and the addition of a generic top-level domain (“gTLD”) are insufficient to distinguish the domain name from the mark under Policy ¶ 4(a)(i). Therefore, the <greatwolflodge.net> domain name is substantively identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding the domain name <hannoverre.com> to be identical to the HANNOVER RE mark:  

 

as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names.

 

See also George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that eliminating the space between terms of a mark left the resulting <gwbakeries.mobi> domain name identical to a complainant’s GW BAKERIES mark); further see Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005):

 

[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.

 

Finally, see Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding a respondent’s <honeywell.net> domain name to be identical to a complainant’s HONEYWELL mark).

 

As to Respondent’s <greatwolfelogde.com> domain name, it is confusingly similar to Complainant’s GREAT WOLF LODGE service mark.  The disputed domain name misspells two terms in its mark (“wolfe” and “logde”), removes the spaces between the terms of the mark, and adds a gTLD.  Despite these alterations, the disputed domain name remains confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to a complainant’s MYSPACE mark, because a slight difference in spelling between the mark and the domain name did not eliminate the confusing similarity);  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 merely renders the resulting domain name confusingly similar to a complainant’s marks);  further see Hannover Ruckversicherungs-AG v. Ryu, supra;  and see also George Weston Bakeries Inc. v. McBroom, supra; see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of a domain name such as “.net” or “.com” does not affect the domain name for purposes of determining whether it is identical or confusingly similar to a competing mark);  finally see 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.

 

The Panel therefore finds that Policy ¶ 4(a)(i) is satisfied.

 

Rights or Legitimate Interests

 

Complainant argues that Respondent has no rights to or legitimate interests in the <greatwolflodge.net> and <greatwolfelogde.com> domain names.  Once Complainant has made out a prima facie case in support of this proposition, the burden shifts to Respondent to show that it does have rights to or legitimate interests in the domain names at issue.  See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008):

 

It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.

 

Complainant has made out a prima facie case showing that Respondent lacks rights to or legitimate interests in the disputed domain names, thus shifting the burden to Respondent to contradict that assertion.  And, owing to Respondent’s lack of response to the Complaint filed in this proceeding, we are entitled, without more, to view Complainant’s assertions and corresponding evidence as true.  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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a complaint filed under the Policy allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence).

 

Nonetheless, we elect to examine the record before us, in light of the criteria 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 noting that the WHOIS information for the <greatwolflodge.net> and <greatwolfelogde.com> domain names lists the registrant for each only as “N/A c/o Kun Da”.  Moreover, Complainant alleges, and Respondent does not deny, that Respondent does not own any trademark registrations for the domain names, nor has Complainant consented to Respondent’s use of the domain names.  On this record, we must conclude that Respondent is not commonly known by the disputed domain names so as to have demonstrated that it has rights to or legitimate interests in either of the contested domain names pursuant to Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply);  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 where there was no evidence in the record showing that that respondent was commonly known by that domain name, including the WHOIS information, 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 argues, without objection from Respondent, that Respondent’s use of its <greatwolflodge.net> and <greatwolfelogde.com> domain names is not in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). On the record before us, we agree with Complainant’s contentions.  Moreover, in the circumstances here presented, we presume that Respondent receives commercial income, in the form of click-through or similar fees, from the visits of Internet users to the links featured on its resolving website.  See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a contested domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii));  see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a contested domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether the links resolve to competing or unrelated websites or whether that respondent is itself commercially profiting from the click-through fees).

 

Finally, under this head of the Complaint, Complainant asserts that Respondent’s <greatwolfelogde.com> domain name is an intentional misspelling of Complainant’s GREAT WOLF LODGE mark and, as such, constitutes typo-squatting. Respondent does not deny this assertion.  We therefore conclude that Respondent’s domain name is an intentional misspelling of Complainant’s mark, meeting the definition of typo-squatting and, as such, it is evidence of Respondent’s lack of rights to and legitimate interests in the <greatwolfelogde.com> domain name under Policy ¶ 4(a)(ii).  See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, a respondent had engaged in:

 

typosquatting, which provides additional evidence that respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).

 

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 a complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).

 

The Panel thus finds that Policy ¶ 4(a)(ii) is satisfied.

 

Registration and Use in Bad Faith

 

Respondent’s <greatwolflodge.net> and <greatwolfelogde.com> domain names each resolve to a website that features hyperlinks to the website of Complainant, and to those of Complainant’s competitors, and to those of unrelated third-parties.  This disrupts Complainant’s business, and stands as evidence of bad faith registration and use of the disputed domain names under Policy ¶ 4(b)(iii).  See David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that a respondent registered and used a disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) where that respondent used the domain name to advertise goods and services of a complainant’s competitors, thereby disrupting that complainant’s business);  see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use of a domain name pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to a complainant’s competitors).

 

Because Respondent likely profits from click-through fees when Internet users, seeking Complainant, are confused by Respondent’s domain names and access the hyperlinks listed on Respondent’s resolving websites, we conclude that Respondent’s registration and use of the subject domain names for commercial gain is likewise evidence of bad faith registration and use of the domains pursuant to Policy ¶ 4(b)(iv).  See 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).

 

See also AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that a respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and a complainant’s AOL mark, which indicated bad faith registration and use of the domain names pursuant to Policy ¶ 4(b)(iv)).

 

We have found that Respondent’s <greatwolfelogde.com> domain name is an intentional misspelling of Complainant’s mark and is therefore evidence of typo-squatting.  Typo-squatting is further evidence of Respondent’s bad faith registration and use of the disputed domain name 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]… mark.

 

See also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name where it misspelled a complainant’s MICROSOFT mark).

 

For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) is satisfied.

 

DECISION

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 <greatwolflodge.net> and <greatwolfelogde.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.

 

 

Terry F. Peppard, Panelist

Dated:  June 7, 2010

 

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