Vera Bradley, Inc. v. Chad Moston
Claim Number: FA1308001514028
Complainant is Vera Bradley, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Chad Moston (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <veravradley.com>, registered with Moniker Online Services LLC.
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.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on August 9, 2013; the National Arbitration Forum received payment on August 9, 2013.
On August 14, 2013, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <veravradley.com> domain name is regis-tered with Moniker Online Services LLC and that Respondent is the current registrant of the names. Moniker Online Services LLC has verified that Re-spondent is bound by the Moniker Online Services 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 August 14, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 3, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all en-tities and persons listed on Respondent’s registration as technical, administrat-ive, and billing contacts, and to postmaster@veravradley.com. Also on August 14, 2013, 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 September 17, 2013, pursuant to Complainant's request to have the dispute decided 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 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.
A. Complainant
Complainant has been in business for nearly thirty years, operating under the VERA BRADLEY mark, in the production and sale of accessories for women.
Complainant holds a registration for the VERA BRADLEY trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 1,745,799, registered January 12, 1993.
Respondent registered the <veravradley.com> domain name on March 26, 2008.
The <veravradley.com> domain name is confusingly similar to Complainant’s VERA BRADLEY mark.
Respondent has never been commonly known by the disputed domain name.
Complainant has not authorized Respondent to use its VERA BRADLEY mark.
Respondent does not use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent uses the domain name to redirect users to a website featuring generic third party links, some of which resolve to websites that compete with Complainant’s business.
Complainant presumes that Respondent receives pay-per-click revenue from the operation of these linked websites.
Respondent has no rights to or legitimate interests in the domain name.
Respondent is a serial cyber-squatter that has engaged in a pattern of this type of a conduct.
Respondent’s use of the <veravradley.com> domain name disrupts Complain-ant’s business.
Respondent’s registration of the <veravradley.com> domain name constitutes typo-squatting in that the domain name is a common misspelling of Complain-ant’s VERA BRADLEY mark.
Respondent registered and uses the contested domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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 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 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 has rights in the VERA BRADLEY trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark auth-ority, the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006):
Complainant has established rights in the … mark through registration of the mark with the USPTO.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <veravradley.com> domain name is confusingly similar to Complainant’s VERA BRADLEY mark. The core of the domain name differs from Complainant’s mark by only one character in that the letter “b” in “Bradley” has been changed to the letter “v.” Additionally, the space between the terms of the mark has been omitted and the generic top level do-main (“gTLD”) “.com” has been added. These alterations of the mark, made in forming the domain name, do not save the domain name from the realm of con-fusing similarity under the standards of the Policy. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to a UDRP complainant's BELKIN mark where the domain name merely replaced the letter “i” in that complainant's mark with the letter “e”).
See also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of the spaces between the terms of the mark of another and the addition to it of a gTLD to create a domain name do not establish distinctiveness from a UDRP complainant’s mark under Policy ¶ 4(a)(i)).
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 complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent 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 out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has never been commonly known by the disputed domain name, and that Complainant has not authorized Respondent to use its VERA BRADLEY mark. Moreover, the WHOIS record for the disputed domain name identifies the domain name registrant only as “Chad Moston,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (conclud-ing that a respondent was not commonly known by disputed domain names, and so failed to show that it had rights to or legitimate interests in them as proved in Policy ¶ 4(c)(ii), where the relevant WHOIS information, as well as all other evi-dence in the record, gave no indication that that respondent was commonly known by the domain names, and where a UDRP complainant had not author-ized that respondent to register a domain name containing its mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent is not using the <veravradley.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, in that Respondent employs the domain name to redirect users to a website featuring generic third party links, some of resolve to websites that com-pete with Complainant’s business. In the circumstances here presented, we may comfortably presume that Respondent receives pay-per-click revenue from the operation of these linked websites. This use of the domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (finding that the operation of a pay-per-click website resolving from a domain name that is confusingly similar to the mark of another was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncom-mercial or fair use under Policy ¶ 4(c)(iii)).
Therefore, the Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent is, as alleged in the Com-plaint, a serial cyber-squatter that has engaged in a pattern of registering and using in bad faith domain names which are confusingly similar to the marks of others. See SPTC, Inc. and Sotheby’s v. Speedplexer c/o Chad Moston, FA 122152 (Nat. Arb. Forum Sept. 30, 2008); see also The Toronto-Dominion Bank v. Chad Moston, FA 1465139 (Nat. Arb. Forum Oct 31, 2012). Under Policy ¶ 4(b)(ii), this stands as proof that Respondent registered and uses the instant domain name in bad faith. See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding, under Policy ¶ 4(b)(ii), bad faith registration and use of a domain name where a respondent had been subject to several UDRP proceedings in which panels ordered the transfer of disputed domain names containing the trademarks of UDRP complainants).
We are also convinced by the evidence that Respondent’s use of the contested <veravradley.com> domain name as alleged in the Complaint disrupts Complain-ant’s business. This demonstrates bad faith registration and use of the domain name under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), the panel there finding that a re-spondent registered and used a disputed domain name in bad faith under Policy ¶ 4(b)(iii) where that respondent used a domain name that was confusingly simi-lar to the mark of another to attract Internet users to a directory website featuring links to the websites of a UDRP complainant’s commercial competitors.
And, that Respondent evidently seeks to profit from the employment of a domain name that is confusingly similar to Complainant’s VERA BRADLEY trademark shows that the domain name was registered and is being used in bad faith as described in Policy ¶ 4(b)(iv). See, for example, AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000), the panel there finding that a respondent acted in bad faith under Policy ¶ 4(b)(iv) where a disputed domain name resolved to a website offering links to third-party websites of a UDRP complainant’s commer-cial competitors.
Finally, under this head of the Policy, the evidence is persuasive that Respond-ent’s registration of the <veravradley.com> domain name constitutes an instance of typo-squatting, in that the domain name is a common misspelling of Complain-ant’s VERA BRADLEY trademark which takes advantage of a common error made by Internet users in entering into a web browser the mark of an enterprise with which they wish to do business. See Liberty Mut. Ins. Co. v. Domain Park Ltd., FA 1189049 (Nat. Arb. Forum June 23, 2008), defining typo-squatting as the “registration of a disputed domain name that capitalizes on Internet users’ typo-graphical errors.” Typo-squatting is itself evidence of bad faith registration of a domain name. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that a respondent engaged in typo-squatting, thus evidencing bad faith registration of a domain name under Policy ¶ 4(a)(iii)).
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 <veravradley.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 1, 2013
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