Cabela's, Inc. v. Whois Agent
Claim Number: FA1206001451366
Complainant is Cabela's, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Whois Agent (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cbelas.com>, registered with MONIKER.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 29, 2012; the National Arbitration Forum received payment on June 29, 2012.
On July 2, 2012, MONIKER confirmed by e-mail to the National Arbitration Forum that the <cbelas.com> domain name is registered with MONIKER and that Respondent is the current registrant of the name. MONIKER has verified that Respondent is bound by the MONIKER registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 3, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 23, 2012 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@cbelas.com. Also on July 3, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 August 1, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 name be transferred from Respondent to Complainant.
1) Complainant, Cabela’s Inc., is the largest mail-order, retail and Internet outdoor outfitter in the world.
2) Complainant’s famous catalogs are shipped to all 50 of the United States as well as 125 countries.
3) Complainant has been operating through the <cabelas.com> website since 1998.
4) The <cbelas.com> domain name is confusingly similar to the CABELA’S and CABELAS.COM marks that Complainant owns with the United States Patent and Trademark Office ("USPTO") as follows:
i. CABELA’S (Reg. No. 1,151,981 registered April 21, 1981); and
ii. CABELAS.COM (Reg. No. 2,247,977 registered May 25, 1999).
5) Respondent is not, and has not been, commonly known by the <cbelas.com> domain name, and has not been granted permission to use Complainant’s marks in any way.
6) Respondent is not using the disputed domain name for a bona fide offering of goods or services because the domain name resolves to a website featuring “generic links to third-party websites, some of which directly compete with Complainant’s business.”
7) Respondent presumably receives click-through fees from the linked websites.
8) Respondent’s use of typosquatting in the domain name at issue is evidence of its bad faith registration and use of the disputed domain name.
9) Respondent’s bad faith is exemplified by Respondent’s collection of click-through revenue by using a misspelling of Complainant’s mark to take advantage of Complainant’s well known mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant has rights to its CABELA’S mark.
2. Respondent’s <cbelas.com> domain name is confusingly similar to Complainant’s mark.
3. Respondent has no rights to or legitimate interests in the domain name.
4. Respondent registered and used the domain name in bad faith.
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."
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.
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.”).
Complainant presents the Panel with its trademark registrations for the CABELA’S (Reg. No. 1,151,981 registered April 21, 1981) and CABELAS.COM marks (Reg. No. 2,247,977 registered May 25, 1999) that it holds with the USPTO. Complainant asserts that its trademark registrations affirmatively establishes its rights in the marks under Policy ¶ 4(a)(i). The Panel agrees and finds that Complainant has rights in the CABELA’S and CABELAS.COM marks pursuant to Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO). The Panel also finds that Policy ¶ 4(a)(i) does not require a complainant to own trademark rights in the country of a respondent. See 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).
Complainant asserts that the <cbelas.com> domain name is confusingly similar to the CABELA’S and CABELAS.COM marks under Policy ¶ 4(a)(i). The Panel notes that the disputed domain name merely removes the letter “a” from the CABELAS.COM mark. Therefore, the Panel finds that the <cbelas.com> domain name is confusingly similar to the CABELAS.COM mark under Policy ¶ 4(a)(i). 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”).
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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent is not commonly known by the disputed domain name and that Complainant has not granted Respondent permission to use its marks. The Panel notes that the WHOIS information identifies the registrant of the <cbelas.com> domain name as “Whois Agent.” Based upon this information, the Panel finds that Respondent is not commonly known by the <cbelas.com> domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Further, Complainant contends that Respondent is not using the <cbelas.com> domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Complainant argues that Respondent is using the disputed domain name as a links directory website with links to Complainant’s official website as well as to various competing websites. The Panel notes that Complainant’s screenshot validates this claim. See Complainant’s Exhibit H. The Panel finds, based upon the evidence submitted by Complainant, that Respondent is not using the <cbelas.com> domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant argues that Respondent’s bad faith is illustrated by Respondent’s use of the disputed domain name as a links directory website. Complainant’s evidence indicates that Respondent’s disputed domain name features third-party links to Complainant’s official website, as well as links to Complainant’s competitors in the outdoor and hunting gear industry. See Complainant’s Exhibit H. Complainant asserts that Respondent is taking commercial advantage of Complainant’s marks and that Respondent’s use of the disputed domain name is evidence of bad faith. The Panel agrees and finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). The Panel finds that Respondent is attempting to confuse Internet users as to the source, sponsorship, or affiliation of the disputed domain name for commercial gain. 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)(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).
Further, Complainant contends that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. Complainant asserts that Respondent’s removal of the letter “a” from Complainant’s mark is typosquatting. The Panel agrees that Respondent has typosquatted Complainant’s marks. The Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’ . . . through Respondent’s persistent practice of ‘typosquatting’”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cbelas.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 14, 2012
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