Adorama, Inc. v. jeonggon seo
Claim Number: FA1307001508789
Complainant is Adorama, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is jeonggon seo (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com>, registered with HANGANG Systems,Inc. d/b/a doregi.com.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 9, 2013; the National Arbitration Forum received payment on July 9, 2013. The Complaint was submitted in both Korean and English.
On July 11, 2013, HANGANG Systems,Inc. d/b/a doregi.com confirmed by e-mail to the National Arbitration Forum that the <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names are registered with HANGANG Systems,Inc. d/b/a doregi.com and that Respondent is the current registrant of the names. HANGANG Systems,Inc. d/b/a doregi.com has verified that Respondent is bound by the HANGANG Systems,Inc. d/b/a doregi.com 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 23, 2013, the Forum served the Korean language Complaint and all Annexes, including a Korean language Written Notice of the Complaint, setting a deadline of August 12, 2013 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@adoorama.com, postmaster@adorams.com, postmaster@adotama.com, and postmaster@asorama.com. Also on July 23, 2013, the Korean language 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 20, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the ADORAMA mark. Respondent’s domain names are confusingly similar to Complainant’s mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names, and that Respondent registered and uses the domain names 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.”).
Language of the Proceedings
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant contends that it is known as the best photography retailer throughout the world. Complainant argues that it is the owner of a trademark registration with the USPTO for the ADORAMA mark (Reg. No. 3,296,024, registered September 25, 2007). The Panel assumes that Respondent operates and resides within North or South Korea, based on the Korean language of the Complaint. However, Policy ¶ 4(a)(i) does not require that Complainant register its mark in the country in which Respondent resides, so long as it establishes rights in the mark in some jurisdiction. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel finds that Complainant’s registration of the ADORAMA mark with the USPTO sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant argues that Respondent’s <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names are confusingly similar to Complainant’s ADORAMA mark because they differ by only a single character from Complainant’s mark. Respondent adds an additional letter “o” to its <adoorama.com> domain name. Respondent’s addition of a letter to Complainant’s mark does not negate a finding of confusing similarity pursuant to Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). Respondent has substitued one letter in Complainant’s ADORAMA mark for another in its <adorams.com>, <adotama.com>, and <asorama.com> domain names. Respondent’s substitution of letters in a mark is inconsequential to a Policy ¶ 4(a)(i) determination. See 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”). Lastly, Respondent adds the generic top-level domain (“gTLD”) “.com” to its <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names. Respondent’s addition of a gTLD to its domain names does not differentiate the domain names from Complainant’s mark under Policy ¶ 4(a)(i). See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Consequently, the Panel concludes that Respondent’s <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names are confusingly similar to Complainant’s ADORAMA mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant alleges that Respondent has not been commonly known by the disputed domain names. Complainant claims that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant contends that it has not given Respondent permission to use Complainant’s ADORAMA mark in any way. The Panel observes that the WHOIS information for the <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names lists “jeonggon seo” as the registrant. See Complainant’s Exhibit I. In M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006), the panel found that respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record. Thus, the Panel determines that Respondent is not commonly known by the <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names under Policy ¶ 4(c)(ii).
Complainant claims that Respondent is using the <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent’s disputed domain names lead to hyperlink directories featuring competing links titled “Compare DSLR Cameras,” “Camera Tripods for Sale,” “Adorama Camera,” and more. Complainant argues that Respondent presumably receives pay-per-click fees from these linked websites. A complainant’s use of a domain name to provide competing hyperlinks is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use). Accordingly, the Panel finds that Respondent is not using its <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names in connection with a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent has also listed the disputed domain names for sale. Respondent’s <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names have banners along the top of the webpage stating “This domain has recently been listed in the marketplace at domainnamesales.com.” A respondent’s general offer of sale of a domain name evidences bad faith under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Therefore, the Panel holds that Respondent has registered and is using its <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names in bad faith under Policy ¶ 4(b)(i).
Complainant claims that Respondent is a recalcitrant, serial cybersquatter. Complainant argues that searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such cybersquatting behavior. See, e.g., AGIP LLC v. Jeonggon Seo, FA 1428545 (Nat. Arb. Forum March 9, 2012); Zappos.com, Inc. v. Jeonggon Seo, D2006-0677 (WIPO Aug. 4, 2006); Ets Leobert, SARL v. Jeonggon Seo, D2009-0004 (WIPO April 8, 2009). Because the Panel finds that Respondent has multiple prior proceedings resulting in bad faith use and transfer, the Panel finds that Respondent has registered and is using the <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names in bad faith under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
Complainant argues that Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. Respondent’s <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names resolve to hyperlink directories containing competing links titled “Best Buy Cameras,” “Camera Tripods for Sale,” “Adorama Camera,” and more. Complainant alleges that these links therefore divert potential customers away from Complainant to third-party websites, therefore disrupting Complainant’s business. In Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008), the panel determined that “Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related 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).” Consequently, the Panel finds that Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii).
Complainant alleges that Respondent is using the disputed domain names to attract and mislead consumers for its own profit. Complainant asserts that Respondent has set up “click through” websites for which it likely receives revenue for each misdirected Internet user. Respondent’s <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names resolve to webpages featuring links that directly compete with Complainant’s legitimate photography business. Because Respondent’s use of the disputed domain names attracts or misleads Internet users for which it commercially benefits, the Panel determines that Respondent has registered and is using the <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Complainant asserts that Respondent’s typosquatting behavior is, without more, evidence of bad faith. Respondent merely adds or substitutes letters in its <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names. Respondent’s typographical errors in its disputed domain names are considered typosquatting, evidencing bad faith use and registration under Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “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).”).
The Panel finds Complainant has satisfied 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 <adoorama.com>, <adorams.com>, <adotama.com>, and <asorama.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: August 26, 2013
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