Charlotte Russe Merchandising, Inc. v. COMDOT INTERNET
SERVICES
PRIVATE LIMITED.
Claim Number: FA1004001321474
Complainant is Charlotte Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <charlotteruuse.com> and <charlottesrusse.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically April 26, 2010.
On April 26, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <charlotteruuse.com> and <charlottesrusse.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 verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd registration agreement and thereby has 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@charlotteruuse.com and postmaster@charlottesrusse.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 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sits as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 <charlotteruuse.com> and <charlottesrusse.com> domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark.
2. Respondent has no rights to or legitimate interests in the <charlotteruuse.com> and <charlottesrusse.com> domain names.
3. Respondent registered and used the <charlotteruuse.com> and <charlottesrusse.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Charlotte Russe Merchandising, Inc., specializes in women’s apparel and accessories in its mall-based retail stores. Complainant owns trademark registrations for the CHARLOTTE RUSSE marks with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,485,692 issued Apr. 19, 1988).
Respondent, COMDOT INTERNET
SERVICES PRIVATE LIMITED., registered the <charlotteruuse.com> domain name November 21, 2005, and the <charlottesrusse.com> domain name
November 26, 2005. Both disputed domain
names redirect to generic websites featuring links to other goods and services,
some of which are in competition with Complainant.
Respondent has been the
respondent in multiple other UDRP proceedings where the disputed domain names
were transferred to the respective complainants. See
Asbury Auto. Group Inc. v. Comdot
Internet Servs. Private Ltd., FA 1178538 (Nat. Arb. Forum June 4, 2008); see also Manpower Inc. v. Comdot Internet
Servs. Private Ltd., FA 1221627 (Nat. Arb. Forum Oct. 13, 2008); see also Anderson Chevrolet of Merrillville,
Inc. v. COMDOT INTERNET SERVS. PRIVATE LTD., FA 1177933 (Nat. Arb. Forum
June 11, 2008).
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 trademark registrations for the CHARLOTTE RUSSE marks with the USPTO (e.g., Reg. No. 1,485,692 issued Apr. 19, 1988). The Panel finds that Complainant established rights in the CHARLOTTE RUSSE mark for purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO; the Panel also finds that such rights are not affected by Respondent’s living and/or operating in a different country. 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 KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant argues that Respondent’s <charlotteruuse.com> and <charlottesrusse.com> disputed domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark because the disputed domain names differ from Complainant’s mark by only one letter: the <charlotteruuse.com> disputed domain name replaces the letter “s” with the letter “u,” and the <charlottesrusse.com> disputed domain name adds an extra letter “s.” Both disputed domain names also append the generic top-level domain (“gTLD”) “.com.” The Panel finds that disputed domain names that differ from Complainant’s mark by only one letter, whether it is one letter replacing another or the adding of an extra letter, both fail to distinguish the domain names from Complainant’s mark. The domain names are confusingly similar pursuant to 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 Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). The Panel does not consider added gTLDs relevant when assessing Policy ¶ 4(a)(i) confusing similarity. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, this Panel finds that Respondent’s <charlotteruuse.com> and <charlottesrusse.com> disputed domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark for the purposes of Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Policy ¶ 4(a)(ii) requires that Complainant first make a prima facie case that Respondent has no rights to or legitimate interests in the disputed domain names. Once Complainant does so, the burden of proof to demonstrate rights to and legitimate interests in the disputed domain names shifts to Respondent. The Panel finds that Complainant’s assertion that Respondent lacks rights and legitimate interests and its supporting evidence sufficiently establish such a prima facie case. Respondent has not met its burden to prove that it does have such rights and legitimate interests because Respondent failed to respond. Thus, the Panel finds that it may accept Complainant’s allegations as true and find that Respondent has no rights to or legitimate interests in the disputed domain names. See Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise).
However, this Panel elects to review the evidence in light of the Policy ¶ 4(c) factors before making a determination as to whether Respondent has rights and/or legitimate interests in the disputed domain names.
Complainant contends that the WHOIS information for the <charlotteruuse.com> and <charlottesrusse.com> disputed domain names, identifies the registrants as “COMDOT INTERNET SERVICES PRIVATE LIMITED.,” which on its face shows that Respondent is not commonly known by the disputed domain name. The Panel finds that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); 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 also alleges that Respondent uses the <charlotteruuse.com> and <charlottesrusse.com> disputed domain names to redirect Internet users to generic websites hosting pay-per-click links to other parties’ websites, some of which offer products in competition with Complainant. The Panel finds that Respondent’s use of the disputed domain names in connection with these sites is not a bona fide offering of goods or services and is not a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 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 Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)).
Complainant also asserts that Respondent’s <charlotteruuse.com> and <charlottesrusse.com> disputed domain
names contain only minor deviations from Complainant’s mark and that these
differences are common typographical errors.
Complainant alleges that Respondent intentionally registered such
mistakes as its domain names in order to exploit Complainant’s fame and
customer base. The Panel finds that the
use of typographical errors in the disputed domain names to attract Internet
traffic is typosquatting and serves as evidence of Respondent’s lack of rights
and legitimate interests in the disputed domain names according to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant lastly alleges that Respondent acted in bad
faith in registering and using the <charlotteruuse.com>
and <charlottesrusse.com> disputed
domain names. Respondent uses the sites
to divert Internet users seeking Complainant’s online presence by diverting
them to Respondent’s website advertising goods of Complainant’s competitors,
thereby disrupting Complainant’s business.
The Panel finds that such intentional diversion by Respondent of
Complainant’s customers to Complainant’s competitors constitutes a disruption
of business and supports findings of bad faith registration and use under
Policy ¶ 4(b)(iii).
See EthnicGrocer.com,
Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum
July 7, 2000) (finding that the minor degree of variation from the
complainant's marks suggests that the respondent, the complainant’s competitor,
registered the names primarily for the purpose of disrupting the complainant's
business); see also Am. Airlines, Inc. v.
Complainant also argues that Respondent’s use of disputed domain names so similar to Complainant’s mark reveals Respondent’s intent to benefit from the goodwill of Complainant’s mark and to attract Complainant’s customers as a result of the confusion created. When consumers click on any of Respondent’s advertised links, it is presumed that Respondent receives financial compensation in the form of click-through fees. The Panel finds, therefore, that Respondent profits from its efforts to confuse and attract Complainant’s customers, which conduct supports findings of bad faith registration and use according to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also 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)(iv) 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).
The Panel has previously found that Respondent’s registration of the <charlotteruuse.com> and <charlottesrusse.com> disputed domain names utilized typosquatting. The Panel finds that typosquatting, standing alone, demonstrates bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“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).”); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and [is] of itself evidence of bad faith.”).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <charlotteruuse.com> and <charlottesrusse.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: June 8, 2010
Click Here to return to the main Domain Decisions Page
Click Here to return to our Home Page
National
Arbitration Forum