U.S. Auto Parts Network, Inc. v. Whois Agent / Domain Whois Protection Service
Claim Number: FA1308001516840
Complainant is U.S. Auto Parts Network, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Whois Agent / Domain Whois Protection Service (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jcwitney.com>, registered with HiChina Zhicheng Technology Ltd.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
On August 28, 2013, HiChina Zhicheng Technology Ltd. confirmed by e-mail to the National Arbitration Forum that the <jcwitney.com> domain name is registered with HiChina Zhicheng Technology Ltd. and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Ltd. has verified that Respondent is bound by the HiChina Zhicheng Technology Ltd. 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 September 10, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of September 30, 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@jcwitney.com. Also on September 10, 2013, the Chinese 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 October 2, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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.
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, the Panel determines the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Trademark/Service Mark Information
Complainant JC WHITNEY Mark
[i.] J.C. WHITNEY for catalogue mail order services, retail store services, and telephone order services in the field of automotive equipment parts, automotive accessories, automotive supplies and tools (U.S. Reg. No. 1,624,212).
[ii.] JCWHITNEY for on-line retailing and wholesale distributorship services, retail store services, catalog mail order services and telephone order services, all in the field of automotive parts, supplies, tools and accessories; providing information, via a website on a global computer network, on automotive parts, supplies, tools and accessories for sale (U.S. Reg. No. 2,569,233);
[iii.] JC WHITNEY for on-line retailing and wholesale distributorship services, retail store services, catalog mail order services and telephone order services, all in the field of automotive parts, supplies, tools and accessories; providing consumer information in the field of automotive parts, automotive supplies, and automotive tools all via the internet (U.S. Reg. No. 3,068,025); and
The marks cited above are hereafter referred to as the "Marks"
FACTUAL AND LEGAL GROUNDS
This
Complaint is based on the following factual and legal grounds:
U.S. AutoParts Network, Inc., collectively with its subsidiaries,
("Complainant") is a leading online provider of aftermarket auto
parts, including body parts, engine parts, performance parts and
accessories. Complainant launched its first website in 2000 and currently
receives the majority of its revenues from a network of websites and online
marketplaces. The flagship websites are located at WWW.AUTOPARTSWAREHOUSE.COM,
WWW.PARTSTRAIN.COM,WWW.JCWHITNEY.COM, WWW.STYLINTRUCKS.COM, WWW.AUTOMD.COM,
and WWW.CARPARTS.COM. The corporate website is located at WWW.USAUTOPARTS.NET.
Complainant,
established in 1995, is a Delaware Corporation and is headquartered in Carson,
California. The Company also has employees located in, Virginia, Illinois and
Ohio, as well as in the Philippines.
In August 2010, Complainant acquired Automotive Specialty Accessories and Parts
("ASAP"). ASAP is the holding company of Whitney Automotive
Group. Whitney Automotive Group was established in 1915 and is best known
for the JC Whitney brand.
Complainant invests millions of dollars into the internet business to maintain its dominant position in the industry. As the single largest cataloger of automotive parts and accessories in the U.S., the JC Whitney brand is nationally recognized and commands excellent customer confidence. Complainant has benefited from its significant investment in its online businesses. The website www.Jcwhitney.com generates approximately 3mm monthly unique visitors.
Complainant is a publicly traded corporation (NasdaqGS: PRTS ) and generated sales of $304.0 million in 2012. Through the acquisition of Whitney Automotive Group, Complainant has expanded its product-lines and increased its customer reach.
In addition to continued growth, complainant also received the following recognitions:
· U.S. Auto Parts Network, No. 91 in the Internet Retailer Top 500 Guide 2010
· U.S. Auto Parts Network, No. 59 in the Internet Retailer Top 500 Guide April 2011
· JC Whitney has been named "Best of the Web Top50 Retailing Sites" for 2007 to Internet Retailers.
·
U.S.
Auto Parts Network, Inc.
was ranked 13th in Deloitte's prestigious Technology Fast50 Program for Los
Angeles.
In addition, Complainant owns the Marks cited in Section 4(c) above for which it maintains federal trademark registrations. None of these federal trademark registrations have been abandoned, cancelled, or revoked with the USPTO. Each of these filings has become incontestable through the filing of Section 8 and 15 affidavits with the USPTO.
[a.] The Disputed Domain Name(s) are nearly identical and confusingly similar to Complainant's Mark(s).
i. By virtue of its federal trademark and/or service mark registrations, Complainant is the owner of the Complainant's Mark(s). See, e.g., United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202 ("Panels have long recognized Complainant's registration of a mark with a trademark authority is sufficient to confer rights in the mark pursuant to Policy 4(a)(i)"). As in other cases, it is also important to note that it is irrelevant for the purposes of Policy ¶4(a)(i) whether Complainant registered the mark in the country where Respondent operates or resides. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a complainant can demonstrate rights in a mark in some jurisdiction).
ii. When comparing the Disputed Domain Name(s) to the Complainant's Mark(s), the relevant comparison to be made is between only the second-level portion of the Disputed Domain Name(s) and the Complainant's Mark(s). See Rollerblade, Inc. v. Mc Crady, WIPO Case No.D2000-0429 (finding that the top-level domain, such as ".net" or ".com", does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., NAF Claim No. FA0304000153545 ("[t]he addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.")
iii. The Disputed Domain Name(s) (is/are) confusingly similar to Complainant's Mark(s) because (it/they) differ(s) by only a single character from Complainant's Mark(s), or because it differs by only the juxtaposition of two characters when compared to Complainant's Mark(s). For clarification, the Disputed Domain Name(s) contain(s) either:
[i.] the addition of one extra character, or...
[ii.] the removal of one character, or...
[iii.] one character which is incorrect, or...
[iv.] two juxtaposed characters
as compared to Complainant's Mark(s).
iv. The Disputed Domain Name(s) (is/are), simply put, a classic example of "typosquatting". The practice of typosquatting is designed to take advantage of Internet users' typographical errors, which means the names must be confusingly similar by design. See Reuters Ltd. v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); Caterpillar Inc. v. Center for Ban on Drugs, NAF Claim No. FA0603000661437 ("the omission of a single letter from Complainant's mark does not adequately distinguish the Disputed Domain Name from the mark"); and Victoria's Secret v. Zuccarini, NAF Claim No. FA0010000095762 (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant's marks).
[b.] Respondent has no rights or legitimate interests in respect of the Disputed Domain Name(s) for the following reasons:
i. Respondent has not been commonly known by the Disputed Domain Name(s). Upon information and belief, at the time Respondent registered the Domain Name(s), it had no trademark or intellectual property rights in the Domain Name(s). See Policy, ¶4(c)(ii). Where, as here, "the WHOIS information suggests Respondent is known as" an entity other than the trademark associated with Complainant, and Complainant has not "licensed, authorized, or permitted Respondent to register domain names incorporating Complainant's... mark," a Panel should find that the Respondent is not commonly known by the Disputed Domain Name. See United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202. See also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy, ¶4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); See also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that when a respondent was not known by a mark it did not have rights in a domain name incorporating that mark).
ii. Respondent is not sponsored by or legitimately affiliated with Complainant in any way.
iii. Complainant has not given Respondent permission to use Complainant's Mark in a domain name. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding that a respondent had no rights or legitimate interest in the disputed domain name where it was not commonly known by the mark and never applied for a license or permission to use the mark).
iv. "Cease and Desist" letters were sent to the Respondent. The letters informed the Respondent that it was infringing on Complainant's IP rights and allowed the Respondent the opportunity to respond if they have any IP rights. The Respondent was provided with the information of the Complainant's trademark(s), hence showing proof that the Complainant has rights to the brand(s). To date, no reply has been received from Respondent. 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, WIPO Case No. D2000-0009 (WIPO Feb. 29, 2000("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint."). Also in WIPO case ACCOR v. Pham Manh Ha, Case No. D2007-1855, the panel found that the evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name.
v. Respondent has ignored Complainant's attempts to resolve the dispute outside of this administrative proceeding. Complainant notes that if the owner of the Disputed Domain Name(s) fails to respond to this Complaint, it is presumed that the owner has no rights or legitimate interests in the Disputed Domain Name(s). See Mattel, Inc. v. Rave Club Berlin, FA106115 (Nat. Arb. Forum May 8, 2002), citing Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents' failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Further, Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) states that when "the complainant has made a prima facie showing, the burden of production shifts to the respondent to show by providing concrete evidence that it has rights to or legitimate interest in the domain name at issue."
As it relates to the JC WHITNEY trademark
vi. The earliest date on which Respondent registered the Disputed Domain Name(s) was April 7, 2004, which is significantly after Complainant's first use in commerce April 30, 1947, as specified in their relevant registration with the USPTO.
vii. The earliest date on which Respondent registered the Disputed Domain Name(s) was April 7, 2004, which is significantly after Complainant's registration of their relevant Marks with the USPTO on November 20, 1990.
viii. The earliest date on which Respondent registered the Disputed Domain Name(s) was April 7, 2004, which is significantly after Complainant's registration of JCWHITNEY.COM on September 24, 1998.
[c.] The Domain Name(s) should be considered as having been registered and being used in bad faith for the following reasons:
i. Respondent's typosquatting behavior is, in and of itself, evidence of bad faith. 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'"); see also Nat'l Ass'n of Prof'l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) ("Typosquatting ... is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.").
ii. Respondent is using (some or all of) the Disputed Domain Name(s) to redirect Internet users to Complainant's own website through Complainant's affiliate program, which is in direct violation of the affiliate agreement which governs Respondent's relationship as an affiliate of Complainant. As a member of Complainant's affiliate program, Respondent was aware of Complainant's rights in Complainant's Mark(s) when registering the Disputed Domain Name(s). By registering confusingly similar domain names while a member of this affiliate program, Respondent has attempted to opportunistically benefit from its registration and use of the Disputed Domain Name(s) at Complainant's expense. Respondent's registration and use of the Disputed Domain Name(s) while a member of Complainant's affiliate program constitutes additional evidence of bad faith under Policy 4(a)(iii). See Cricket Communc'ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant's mark after enrolling in the complainant's affiliate program); see also Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the domain name in bad faith pursuant to Policy 4(b)(iv) by redirecting its users to the complainant's domain name, thus receiving a commission from the complainant through its affiliate program).
iii. The Respondent has also listed (some or all of) the Disputed Domain name(s) for sale. As shown in WIPO Decision D2001-1066, Trip.com, Inc. v. Daniel Deamone, "A fourth factor is that Respondent has offered the Domain Name for sale to the public. There is nothing inherently wrongful in the offer or sale of domain names, without more, such as to justify a finding of bad faith under the Policy. However, the fact that domain name registrants may legitimately and in good faith sell domain names does not imply a right in such registrants to sell domain names that are identical or confusingly similar to trademarks or service marks of others without their consent. Although Respondent's offer of the Disputed Domain Name(s) for sale was not made specifically to Complainant or its competitor, offers for sale to the public may nevertheless constitute evidence of bad faith under the Policy." The offering for sale of a domain name, even to a third party, supports bad faith. See Policy, Paragraph 4(b); Sporty's Farm L.L.C. v. Sportsman's Market, Inc., 202 F.3d 489 (2d Cir. 2000); Porsche Cars North America, Inc. v. Spencer, 55 U.S.P.Q.2d 1027 (E.D. Cal. 2000); Morrison & Foerster LLP v. Wick, 94 F. Supp.2d 1125 (D. Colo. 2000). See also WIPO Case No. D2003-0689, Mr. Donning Eric v. Mr. Nyunhwa Jung,..."The posting of the announcement: "This domain is for SALE!" constitutes satisfactory evidence, when combined with the Respondent's lack of legitimate rights to or interests in the domain name, that the Respondent's primary purpose in registering the domain name was to sell it in contravention of the Policy (EFG Bank European Financial Group SA v. Jacob Foundation, WIPO Case No. D2000-0036).
iv. Respondent's use of apparently falsified and/or incomplete WHOIS contact information demonstrates a desire to avoid being held accountable, which serves as further evidence of bad faith intent. See, e.g., Time Warner Inc. v. AOLMEMBERS.COM et al., NAF Claim No. FA0701000881337 ("fictitious or false WHOIS information about both the registrant's name and physical address... raises the presumption of bad faith registration and use").
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(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 claims it was established in 1995, and has since become a leading online provider of aftermarket auto parts, including body parts, engine parts, performance parts and accessories. Complainant invests millions of dollars into its Internet business to maintain its dominant position in the industry as the single largest cataloger of automotive parts and accessories in the United States. Complainant acquired Automotive Specialty Accessories and Parts, the holding company of Whitney Automotive Group, in August of 2010. Whitney Automotive Group was established in 1915 and is best known for the JC Whitney brand. Complainant has rights in the JCWHITNEY mark by virtue of its registrations with the United States Patent & Trademark Office (“USPTO”) (e.g., Reg. No. 2,569,233 registered May 14, 2002). Complainant’s USPTO registrations sufficiently establish Complainant’s rights in the mark pursuant to Policy ¶4(a)(i), even though Respondent operates outside of the United States. See Enter. Rent-A-Car Co. v. Language Direct, FA 306586 (Nat. Arb. Forum Oct. 25, 2004) (finding that the complainant, who registered the ENTERPRISE RENT-A-CAR mark with the USPTO, successfully established rights in the mark); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of Policy ¶4(a)(i) whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant claims Respondent’s <jcwitney.com> domain name is confusingly similar to Complainant’s JCWHITNEY mark pursuant to Policy ¶4(a)(i). The disputed domain name omits the letter “h” from Complainant’s mark, while also affixing the generic top-level domain (“gTLD”) “.com.” Neither change is sufficient to differentiate the disputed domain name from Complainant’s mark, which means Respondent’s <jcwitney.com> domain name is confusingly similar to Complainant’s JCWHITNEY mark within the meaning of Policy ¶4(a)(i). See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding that <davemathewsband.com> is a common misspelling of the DAVE MATTHEWS BAND mark and therefore confusingly similar); 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).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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 Respondent is not been commonly known by the <jcwitney.com> domain name for the purposes of Policy ¶4(c)(ii). Respondent had no trademark or intellectual property rights in the disputed domain name at the time Respondent registered the domain. The WHOIS record for the disputed domain name lists “Whois Agent / Domain Whois Protection Service” as the domain name registrant. Complainant has not given Respondent permission to use its mark in a domain name, and Respondent is not sponsored by or legitimately affiliated with Complainant in any way. The Panel in IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006), found that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name where the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it was commonly known by the domain name. In light of Respondent’s failure to submit a response in this case, the Panel finds Respondent is not commonly known by the <jcwitney.com> domain name for the purposes of Policy ¶4(c)(ii).
Respondent registered the domain name through a privacy service. This means the titled registrant of the domain name does not conduct any operations (or even use the domain name). The undisclosed beneficial owner of the domain name cannot acquire any rights to the domain name because it conceals its ownership of the domain name. In the commercial context, using a privacy service raises a rebuttable presumption Respondent has acquired no rights to the disputed domain name. Respondent has done nothing to rebut that presumption.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent has demonstrated bad faith pursuant to Policy ¶4(b)(i) by listing the disputed domain name for sale. The WHOIS listing for the <jcwitney.com> domain name provided by Complainant indicates the domain is listed for sale by its owner. The panel in Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), found that even a respondent’s general offer of a disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶4(b)(i). Accordingly, the Panel holds Respondent has registered the <jcwitney.com> domain name in bad faith pursuant to Policy ¶4(b)(i).
Complainant claims Respondent was aware of Complainant's rights in the JCWHITNEY mark when registering the disputed domain name because it was a member of Complainant’s affiliate program. Based upon this undisputed information, the Panel concludes Respondent’s registration of the <jcwitney.com> domain name was done knowingly to exploit Complainant’s mark. Respondent clearly registered the <jcwitney.com> domain name while knowing about Complainant’s rights, meaning its registration was in bad faith pursuant to Policy ¶4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
As noted above, Respondent used a privacy service to register the disputed domain name. This Panel has repeatedly held such conduct raises the rebuttable presumption of bad faith in a commercial context. Respondent has done nothing to rebut this presumption. Therefore, the Panel is comfortable making a finding of bad faith on this evidence alone.
Complainant’s representative makes its usual argument Respondent’s bad faith can be found because it is a “typosquatter.” This Panel remains unconvinced despite the fact other panels have been swayed by this argument. Typosquatting does not explicitly violate the UDRP and Complainant has failed to make the necessary underlying factual allegations on this point to convince this Panel Complainant’s business is being disrupted. As a seasoned advocate, CitizenHawk may simply be meeting its good faith obligations by not advancing an argument which the facts support do not support. Of course, this is all irrelevant because the Panel has found bad faith on other grounds.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <jcwitney.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Wednesday, October 30, 2013
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