national arbitration forum

 

DECISION

 

FragranceNet, Inc. v. Andrew Dennis

Claim Number: FA1209001464082

 

PARTIES

Complainant is FragranceNet, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Andrew Dennis (“Respondent”), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <fragranccenet.com>, <fragranceenet.com>, and <frragrancenet.com>, registered with Godaddy.com, LLC.

 

PANEL

The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.

 

Terry F. Peppard as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electron-ically on September 24, 2012; the National Arbitration Forum received payment on September 24, 2012.

 

On September 26, 2012, Godaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <fragranccenet.com>, <fragranceenet.com>, and <frragrancenet.com> domain names are registered with Godaddy.com, LLC and that Respondent is the current registrant of the names.  Godaddy.com, LLC has verified that Respondent is bound by the Godaddy.com, LLC registration agree-ment 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 September 26, 2012, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of October 16, 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, adminis-trative, and billing contacts, and to postmaster@fragranccenet.com, postmaster-@fragranceenet.com, postmaster@frragrancenet.com.  Also on September 26, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respond-ent via post and fax, to all entities and persons listed on Respondent’s registra-tion 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 October 25, 2012, pursuant to Complainant's request to have the dispute de-cided 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 Electronic and Written Not-ices, 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

 

Complainant is an online retailer of discounted genuine brand name fragrances and beauty products. 

 

Complainant owns service mark registrations, on file with the United States Patent and Trademark Office ("USPTO") for the FRAGRANCENET.COM mark (Reg. No. 3,559,768, registered Jan. 13, 2009).

 

Respondent registered the three contested domain names <fragranccenet.com>, <fragranceenet.com>, and <frragrancenet.com> on July 10, 2012. 

 

Each of Respondent’s domain names is confusingly similar to Complainant’s FRAGRANCENET.COM mark.

 

Respondent has not been commonly known by the disputed domain names or the FRAGRANCENET.COM mark, and Respondent has not been licensed or otherwise authorized to use Complainant’s mark.

 

Respondent is using the disputed domain names to redirect Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business, for which Respondent is commercially compensated. 

 

Such use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii).

 

Respondent has neither any rights to nor any legitimate interests in the contested domain names.  

 

Respondent’s use of the disputed domain names to display third-party links to the websites of Complainant’s competitors in the fragrance industry disrupts Complainant’s business and is evidence of bad faith registration and use of the domain names.

 

Respondent presumably profits from its use of the disputed domain names as a links directory by creating confusion with Complainant’s marks, which is also evidence of Respondent’s bad faith registration and use of the domain names. 

 

Respondent’s registration of the disputed domain names constitutes typo-squatting, which is further evidence of Respondent’s bad faith in registering and using the disputed domain names.

 

 

B. Respondent

 

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(1)  Each of the disputed domain names registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and

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

(3)  Each of the same domain names was registered and is 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."

 

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 can-celled 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.

 

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”

 

Identical and/or Confusingly Similar

 

Complainant has rights in the FRAGRANCENET.COM service mark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark auth-ority, the USPTO.  See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that a UDRP complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the marks pursuant to Policy ¶ 4(a)(i)).

 

Turning to the central question arising under Policy ¶ 4(a)(i), we conclude from our review of the record that each of Respondent’s <fragranccenet.com>, <fragranceenet.com>, and <frragrancenet.com> domain names is confusingly similar to Complainant’s FRAGRANCENET.COM service mark.  Each of the domain names is merely a misspelled version of Complainant’s mark, in each instance adding to it a single extraneous letter.  These alterations to the mark, made in forming the domain names, do not distinguish the domain names from the mark under the standards of the Policy.   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).

 

Rights or Legitimate Interests

 

Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a UDRP complainant must make a prima facie case that a respondent lacks rights and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests);  see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):

 

Complainant must first make a prima facie showing that Respond-ent 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 has made a sufficient prima facie showing under this head of the Policy.  Therefore, and because Respondent has failed to respond to the alle-gations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in the contested domain name.  See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both holding that, where a respondent fails to respond to a UDRP Com-plaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name.  Nonetheless, we will ex-amine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respond-ent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy. 

 

We begin by noting that Complainant alleges, and Respondent does not deny,

that Respondent has not been commonly known by the disputed domain names or the FRAGRANCENET.COM service mark, and that Respondent has not been licensed or otherwise authorized to use Complainant’s marks.  Moreover, the WHOIS information for each of the disputed domain names identifies the regis-trant only as “Andrew Dennis,” which does not resemble any of the domain names.  On this record, we conclude that Respondent has not been commonly known by any of the domain names <fragranccenet.com>, <fragranceenet.com>, and <frragrancenet.com> so as to have demonstrated that it has rights to or legitimate interests in any of them as contemplated in Policy ¶ 4(c)(ii).  See, for example, Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name, and so had no rights to or legitimate in-terests in any of them under Policy ¶ 4(c)(ii), where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respond-ent was commonly known by the disputed domain name).

 

We next observe that Complainant asserts in essence, and without objection from Respondent, that Respondent is not making a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of any of them under Policy ¶ 4(c)(iii), in that Respond-ent employs the disputed domain names to redirect Internet users to a website featuring links to third-party websites, some of which directly compete with the  business of Complainant, for which we may comfortably presume that Respond-ent is compensated financially.  Complainant argues that such use of the dis-puted domain names.  From this we conclude that Respondent is not using the disputed domain names for either 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 Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that a UDRP respondent had not demonstrated a bona fide offering of goods or services or a legitimate non-commercial or fair use where “the website resolving from the disputed domain name displays links to … products and services, which directly compete with Complainant’s business”).

 

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

 

Registration and Use in Bad Faith

 

Respondent’s use of the disputed domain names to display third-party links to the websites of Complainant’s competitors in the fragrance industry disrupts Complainant’s business and stands as evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(iii).  See, for example, Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008):

 

Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to … products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).

 

Further, Respondent presumably profits from its use of the disputed domain names by creating confusion among Internet users as to the possibility of Com-plainant’s affiliation with the domain names, all for Respondent’s commercial gain.  This is evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(iv).  See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where a respondent’s domain name resolved to a website offering links to third-party websites that featured services similar to those of a UDRP complainant).

 

Finally, Respondent’s registration and use of three domain names, each repre-senting a deliberately misspelled version of Complainant’s mark, constitutes typo-squatting, which is independent evidence of Respondent’s bad faith in registering and using the disputed domain names.  See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that a respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typo-squatting in its purest form).

 

For these reasons, the Panel finds that Complainant has met its obligations of proof under ¶ 4(a)(iii).

 

DECISION

Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.

 

Accordingly, it is Ordered that the <fragranccenet.com>, <fragranceenet.com>, and <frragrancenet.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.

 

 

 

Terry F. Peppard, Panelist

Dated:  November 9, 2012

 

 

 

 

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