Shoebuy.com, Inc. v. David Ghou / Balram Brahmin / Denesh Kumar / Domain Administrator / Chin-Hui Wu / Alichec Inc. / Liquid SEO Limited / ZincFusion Limited / Lidnick Webcorp Inc / Crystal Image Pty Ltd / Orel Hlasek LLC / Volchar Pty Ltd / Web Pescados LLC / Netmilo / WuWeb Pty Ltd / Alex Ovechkin / Elarson & Associates Pty Ltd / Webatopia Marketing Limited / Marcelos Vainez / Belroots Pty Ltd / Denholm Borg / Oleg Techino / Vlad Obchikov
Claim Number: FA1209001464877
Complainant is Shoebuy.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is David Ghou / Balram Brahmin / Denesh Kumar / Domain Administrator / Chin-Hui Wu / Alichec Inc. / Liquid SEO Limited / ZincFusion Limited / Lidnick Webcorp Inc / Crystal Image Pty Ltd / Orel Hlasek LLC / Volchar Pty Ltd / Web Pescados LLC / Netmilo / WuWeb Pty Ltd / Alex Ovechkin / Elarson & Associates Pty Ltd / Webatopia Marketing Limited / Marcelos Vainez / Belroots Pty Ltd / Denholm Borg / Oleg Techino / Vlad Obchikov (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com>, registered with GoDaddy.com, LLC.
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 September 27, 2012; the National Arbitration Forum received payment on September 27, 2012.
On September 28, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.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 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 October 3, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 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@choebuy.com, postmaster@saoebuy.com, postmaster@sboebuy.com, postmaster@shkebuy.com, postmaster@shlebuy.com, postmaster@sho3buy.com, postmaster@shoabuy.com, postmaster@shodbuy.com, postmaster@shoeb8y.com, postmaster@shoebeuy.com, postmaster@shoebu7.com, postmaster@shoebui.com, postmaster@shoebuyi.com, postmaster@shoebyuy.com, postmaster@shoeeuy.com, postmaster@shoehuy.com, postmaster@shoepuy.com, postmaster@shoibuy.com, postmaster@shosbuy.com, postmaster@shouebuy.com, postmaster@snoebuy.com, postmaster@whoebuy.com, and postmaster@xhoebuy.com. Also on October 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 October 31, 2012, 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.
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> domain names are confusingly similar to Complainant’s SHOEBUY mark.
2. Respondent does not have any rights or legitimate interests in the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> domain names.
3. Respondent registered or used the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> domains name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
1. Respondent has registered the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> disputed domain names using false contact information.
2. All of the disputed domain names use the same affiliate name or ID.
3. All twenty-three Respondents are one and the same respondent.
4. The landing pages for all the disputed domain names redirect to Complainant’s website through Complainant’s affiliate program.
5. The disputed domain names are all misspelled variations of Complainant’s SHOEBUY mark.
6. Complainant owns the exclusive right to use its SHOEBUY mark for the online retail of clothing, footwear, bags accessories and other related products.
7. Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its SHOEBUY mark (Reg. No. 2,871,916 registered Aug. 10, 2004).
8. Respondent’s <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> disputed domain names are confusingly similar to Complainant’s SHOEBUY mark.
9. The disputed domain names are typosquatted versions of Complainant’s SHOEBUY mark.
10. The disputed domain names differ from Complainant’s SHOEBUY mark by the inclusion, subtraction or substitution of a single letter.
11. Respondent is not commonly known by the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> domain names.
12. Respondent is not affiliated with Complainant in any way and Complainant has not given Respondent permission to use its SHOEBUY mark.
13. Respondent did not reply to the “Cease and Desist” letter sent by Complainant.
14. Three of the disputed domain names resolve to an empty page featuring no content.
15. Respondent lacks rights and legitimate interests in the disputed domain names.
16. Respondent first registered the disputed domain names on October 19, 2004, which is after Complainant’s registration of its SHOEBUY mark on December 11, 2001.
17. Respondent uses the disputed domain names in bad faith.
18. Respondent has engaged in a pattern of this bad faith behavior.
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.”).
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The Panel finds that Complainant has presented sufficient evidence that the disputed domain names are controlled by the same entity and thus chooses to proceed with the instant proceedings.
Complainant claims it has rights in its SHOEBUY mark pursuant to Policy ¶ 4(a)(i) based on its registration of the mark with the USPTO (Reg. No. 2,871,916 registered Aug. 10, 2004). Prior to today, panels have found federal trademark registrations are sufficient to establish rights in a mark under Policy ¶ 4(a)(i), even when a Respondent is not located in the place where the mark is registered. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO). Based on Complainant’s USPTO registrations, the Panel finds that Complainant has established rights in its SHOEBUY mark pursuant to Policy ¶ 4(a)(i).
Complainant claims that Respondent’s <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> disputed domain names are confusingly similar to Complainant’s SHOEBUY mark. Complainant asserts that the disputed domain names differ by only a single character from Complainant’s SHOEBUY mark. Complainant further states that some of the disputed domain names possess an added character as compared to Complainant’s SHOEBUY mark. Complainant alleges that the disputed domain names are all typosquatted versions of Complainant’s SHOEBUY mark. The Panel notes that the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebu7.com>, <shoebui.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> domain names all replace a letter in Complainant’s SHOEBUY mark with an incorrect letter or number. The Panel also notes that the <shoebeuy.com>, <shoebuyi.com>, <shoebyuy.com>, and <shouebuy.com> domain names have an additional letter when compared to Complainant’s SHOEBUY mark. Additionally, the Panel notes that Respondent has added the generic top-level domain (“gTLD”) “.com” in all of the domain names. Complainant contends that these types of variations have previously been characterized by other panels as typosquatting under Policy ¶ 4(a)(i). Based on this analysis, the Panel finds that Respondent’s <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> disputed domain names are confusingly similar typosquatted versions of Complainant’s SHOEBUY mark under Policy ¶ 4(a)(i). See Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark); see also 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); see also Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or confusingly similar to the complainant’s federally registered service mark, KELSON); 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”).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names 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 claims that Respondent is not commonly known by the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> domain names under Policy ¶ 4(c)(ii). Complainant argues that according to the WHOIS information submitted in Exhibit I, the record suggests Respondent is known as an entity other than the trademark associated with Complainant or the disputed domain names. Additionally, Complainant states that it has not licensed, authorized or permitted Respondent to register domain names using Complainant’s SHOEBUY mark. The Panel determines that there is no connection between Respondent and the disputed domain names or Complainant’s SHOEBUY mark and thus Respondent is not commonly known by the disputed domain name according to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Further, Complainant asserts that the <shouebuy.com>, <snoebuy.com>, and <whoebuy.com> domain names disputed domain names resolve to empty pages featuring no content or other links. Previous panels have found that using a domain name to host a blank page is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name) Based on Complainant’s contentions and previous UDRP cases, the Panel finds that Respondent’s non-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 fair use under Policy ¶ 4(c)(iii).
Complainant alleges that Respondent’s remaining <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, and <xhoebuy.com> domain names resolve to Complainant’s website through Complainant’s affiliate program. Complainant states that Respondent is fraudulently earning a commission each time a customer makes a purchase after accidentally visiting one of Respondent’s disputed domain names. Previous panels have found that signing a complainant’s affiliate agreement and using a misspelled version of a complainant’s mark to generate profit at a complainant’s expense does not constitute a bona fide offering of goods or services or a legitimate noncommercial fair use of a disputed domain name. See Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by signing up for the complainant’s affiliate program upon registering the domain name, which was a misspelling of the complainant’s mark, the respondent intended to use the domain name to generate profit at the complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)); see also Sports Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003) (finding that registering a domain name which differs by one letter from the complainant’s commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliate program is not a bona fide offering of goods or services nor a noncommercial use of the domain name). The Panel, therefore, finds that Respondent’s use of these disputed domain name does not amount to a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial fair use under Policy ¶ 4(c)(iii).
Complainant asserts that Respondent is a serial typosquatter and has a pattern of this behavior in violation of Policy ¶ 4(b)(ii) based on previous UDRP decisions where Respondent was found to have bad faith. Complainant provides evidence of three other cases where the panels held against Respondent for typosquatting behavior. See exhibit N. The Panel notes that Respondent has also registered more than one domain name in this case. Previous panels have found that a history of adverse UDRP proceedings and one instance of multiple domain name registrations can indicate a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Caterpillar Inc. v. Miyar, FA 95623 (Nat. Arb. Forum Dec. 14, 2000) (finding that registering multiple domain names in a short time frame indicates an intention to prevent the mark holder from using its mark and provides evidence of a pattern of conduct); see also Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Based on Complainant’s arguments and case precedent, the Panel finds that Respondent has shown bad faith under Policy ¶ 4(b)(ii) through its pattern of infringing domain name registrations.
Complainant argues that Respondent demonstrates bad faith in accordance with Policy ¶ 4(b)(iv). Complainant contends that Respondent is using its <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, and <xhoebuy.com> disputed domain names to redirect Internet users to Complainant’s own website through Complainant’s affiliate program. Complainant claims that because Respondent is an affiliate of Complainant, Respondent has attempted to opportunistically benefit from its registration and use of the disputed domain names at Complainant’s expense. Complainant asserts that Respondent presumably earns revenue in the form of a rerouting system designed to take revenue away from Complainant when Internet users purchase products through the disputed domain names. Complainant further claims that Respondent is displaying typosquatting behavior and creating a likelihood of confusion with Complainant’s mark as to the source and affiliation of Respondent’s resolving websites. Previous panels have frequently found bad faith registration under Policy ¶ 4(b)(iv) when a respondent registers a confusingly similar domain name in order to attract consumers to a website in order to profit from their confusion. See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program); see also Sports Auth. Mich., Inc. v. Skander, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” and therefore registered and used the domain name in bad faith). Therefore, the Panel finds that Respondent registered and uses these disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant contends that Respondent is using the <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, and <xhoebuy.com> domain names to redirect Internet users seeking Complainant’s products to Complainant’s own website through Complainant’s affiliate program in violation of the affiliate agreement. Typically, panels have found bad faith registration under Policy ¶ 4(a)(iii) when a respondent uses a confusingly similar domain name to resolve to Complainant’s own website in violation of the affiliate agreement. See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business). Based on Complainant’s contentions and case precedent, the Panel finds that Respondent has registered and is using these disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant also claims that Respondent is inactively holding the <shouebuy.com>, <snoebuy.com>, and <whoebuy.com> domain names. Previous panels have found that merely holding an infringing domain name without active use can constitute bad faith. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith). The Panel therefore finds that Respondent’s inactive holding is evidence of bad faith registration and use of the <shouebuy.com>, <snoebuy.com>, and <whoebuy.com> domain names according to 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 <choebuy.com>, <saoebuy.com>, <sboebuy.com>, <shkebuy.com>, <shlebuy.com>, <sho3buy.com>, <shoabuy.com>, <shodbuy.com>, <shoeb8y.com>, <shoebeuy.com>, <shoebu7.com>, <shoebui.com>, <shoebuyi.com>, <shoebyuy.com>, <shoeeuy.com>, <shoehuy.com>, <shoepuy.com>, <shoibuy.com>, <shosbuy.com>, <shouebuy.com>, <snoebuy.com>, <whoebuy.com>, and <xhoebuy.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: November 13, 2012
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