national arbitration forum

DECISION

MBM Company, Inc. v. COMDOT INTERNET SERVICES PRIVATE LIMITED.

Claim Number: FA1304001493172

PARTIES

Complainant is MBM Company, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is COMDOT INTERNET SERVICES PRIVATE LIMITED (“Respondent”), India.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lomogesjewelry.com>, registered with PUBLICDOMAINREGISTRY PTY. LTD.

PANEL

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.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on April 4, 2013; the National Arbitration Forum received payment on April 4, 2013.

On April 5, 2013, PUBLICDOMAINREGISTRY PTY. LTD. confirmed by e-mail to the National Arbitration Forum that the <lomogesjewelry.com> domain name is registered with PUBLICDOMAINREGISTRY PTY. LTD. and that Respondent is the current registrant of the name. PUBLICDOMAINREGISTRY PTY. LTD. has verified that Respondent is bound by the PUBLICDOMAINREGISTRY PTY. 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 April 10, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 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@lomogesjewelry.com. Also on April 10, 2013, 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 May 7, 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.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A. Complainant

Complainant MBM Company, Inc. (MBM) is a privately held corporation with its principal This place of business in Chicago, Illinois. Limoges Jewelry (Limoges) has been supplying top name retailers with personalized jewelry for over 20 years and is a wholly owned subsidiary of its parent company, MBM.

Limoges Jewelry forgoes traditional expensive showrooms and offers custom-crafted, personalized jewelry designs at discounted prices by mail order catalog services, retails stores and through their online store at www.limogesjewelry.com. Limoges launch edits online store in 1999 and has seen it experience great success. In 2003, Limoges joined the Internet Retailer Top 500, an industry list of top ranking online merchants and in 2007 generated more than half of its overall sales online. Limoges typically generates over $4,000,000 in annual sales. Limoges has clearly established itself in the personalized jewelry market and enjoys wide consumer recognition.

Furthermore, through Limoges, MBM has continuously used the Mark since 1994 in connection with the sale of jewelry through mail order catalogs, retail stores and online stores. MBM owns the Mark cited in Section 4(c) above for which it has obtained a federal trademark registration. The federal mark registration has not been abandoned cancelled or revoked. The filing has become incontestable through the filing of Section 8 and 5 affidavits in the USPTO.

MBM has spent thousands of dollars in advertisement and promotion of the Mark in media and on the Internet. Based on its federal trademark registrations and extensive use, MBM owns the exclusive right to use the Marks in connection with the sale of jewelry through mail order catalogs, retail stores and online stores.

Citing Section 4(c) above, Complainant owns the LIMOGES Mark, which has achieved USPTO Status of Incontestability, and been successfully renewed. Additionally, Complainant owns the Mark LIMOGES JEWELRY, for which it has obtained the federal trademark registration. Neither registration has been abandoned, cancelled or revoked.

Complainant has spent millions of dollars in advertisement and promotion of the LIMOGES Marks on the Internet through its website located at WWW.LIMOGESJEWELRY.COM. Based on its federal trademark registration and extensive use, MBM Company, Inc. owns the exclusive right to use the LIMOGES and LIMOGES JEWELRY Marks in connection with jewelry products and related services.

[a.]

The Disputed Domain Name is nearly identical and confusingly similar to Complainant's Marks.

By virtue of its federal trademark and/or service mark registration(s), 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 to the Complainant's Mark(s), the relevant comparison to be made is between only the second-level portion of the Disputed Domain Name and the Complainant's Marks. See Rollerblade, Inc. v. McCrady, 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 is confusingly similar to Complainant's Marks because it differs by only a single character from Complainant's Marks, or because it differs by only the juxtaposition of two characters when compared to Complainant's Marks. For clarification, the Disputed Domain Name contains 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 Marks.

iv.

The Disputed Domain Name is, 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 for the following reasons:

ii.

iii.

Respondent has not been commonly known by the Disputed Domain Name. 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. United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202.

Respondent is not sponsored by or legitimately affiliated with Complainant in any way.

Complainant has not given Respondent permission to use Complainant's Mark in a domain name.

iv.	A "Cease and Desist" letter was sent to the Respondent. The letter 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 trademarks, hence showing proof that the Complainant has rights to the brands. 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 fails to respond to this Complaint, it is presumed that the owner has no rights or legitimate interests in the Disputed Domain Name. 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."
vi.	Respondent is using the Disputed Domain Name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant's business. Presumably, Respondent receives pay-per-click fees from these linked websites. As such, Respondent is not using the Disputed Domain Name to provide a bona fide offering of goods or services as allowed under Policy; 4(c)(i), nor a legitimate noncommercial or fair use as allowed under Policy; 4(c)(iii). See 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent's use of the 24hrsfitness.comgt, 24-hourfitness.com.gt and 24hoursfitness.com.gt, domain names to redirect Internet users to a website featuring advertisements and links to Complainant's competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent's website, which is blank but for links to other websites, is not a legitimate use of the domain names).
vii.	The earliest date on which Respondent registered the Disputed Domain Name was October 12, 2005, which is significantly after Complainant's first use in commerce, March 31, 1995, as specified in their relevant registration with the USPTO. The earliest date on which Respondent registered the Disputed Domain Name(s) was October 12, 2005, which is significantly after Complainant's registration of the LIMOGES Mark on June 5, 2001
viii.	The earliest date on which Respondent registered the Disputed Domain Name was October 12, 2005, which is significantly after Complainant's registration of limogesjewelry.com on March 13, 1999.

[c.]

The Domain Name should be considered as having been registered and being used in bad faith for the following reasons:

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.

iii.

iv.

Respondent's bad faith is further shown by the Respondent using the Disputed Domain Name website in connection with generating revenue as a "click through" website by using the Complainant's registered trademarks and providing links to the services and products offered by the Complainant to take advantage of Complainant's well known mark to achieve a wrongful competitive advantage and commercial gain. In WIPO Decision D2008-1470, AIDA Cruises German Branch of Societa di Crociere MercurioS.r.l., v. Caribbean Online International Ltd. / Belgium Domains "the Panel finds that the Respondent registered and is using the disputed domain name for the purposes of commercial gain by offering links to other companies' websites related to cruises and travels, in the form of a "clickthrough" website. In similar cases, many prior panel decisions have recognised [sic] that the registration of domain names to be used in a "click-through" website has to be considered as an evidence of bad faith (see, e.g. Abercrombie & Fitch Trading Co. v. Digi Real Estate Foundation., WIPO Case No. D2007-0440; Early Times Distillers Company v. IP Admin / DNAV ASSOCS, WIPO Case No. D2007-1812; HBOS Plc v. Whois Protection, WIPO Case No. D2007-1605)".

To further stress the above, Respondent’s setting up of a “click through” website for which it likely receives revenue for each misdirected Internet user obviously demonstrates Respondent’s bad faith. The Respondent has registered and used the Disputed Domain Name in bad faith pursuant to Policy ¶4(b)(iv) by using the Disputed Domain Name to attract and mislead consumers for its own profit. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). See also Meadowbrook, L.L.C. d/b/a The Land of Nod v. Venkateshwara Distributor Private Limited, Claim Number: FA1112001419361 and Charlotte Russe Merchandising, Inc. v. Private Registrations Aktien Gesellschaft / Domain Admin, Claim Number: FA1204001439309, where the same behavior of bad faith is demonstrated and agreed by the panel, pursuant to Policy ¶4(b)(iv).

In addition to the above, the Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. These links therefore divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. The Panel should find that this effort to divert consumers and disrupt Complainant’s business is evidence of bad faith registration and use under Policy ¶4(b)(iii). See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶4(b)(iii)).

vi.

vii.

viii.

The Respondent has also listed the Disputed Domain Name 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).

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").

Respondent is a recalcitrant, serial cybersquatter / typosquatter. Searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior.

Respondent holds registrations on other domain names that appear to be
straightforward examples of typosquatting. Although those names are not
directly involved in this complaint, they serve as further evidence of bad faith
intent on the part of Respondent. See Policy, 4(b)(ii) and Time Warner Inc. v.
Zone MP3, NAF Claim No. FA0706001008035 (typosquatting combined with
registration of as few as four domain names that are identical or confusingly
similar to "protected marks" is sufficient to establish a pattern leading to bad
faith). See also Citigroup Inc. v. Digi Real Estate Foundation, NAF Claim No.
FA0704000964679.

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

(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.

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 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.”).

Identical and/or Confusingly Similar

Complainant claims rights in the LIMOGES trademark based on its registration of the mark with the United States Patent & Trademark Office (“USPTO”) (Reg. No. 2,457,539 registered June 5, 2001) for its jewelry business. A complainant’s registration of a mark with the USPTO is normally sufficient to confer rights in the mark under Policy ¶4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”). A complainant need not register its mark in the country of a respondent to demonstrate rights in the mark. 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 question is not who has better rights to the mark, but merely whether Complainant has rights. Complainant has established rights under ¶4(a)(i) in the LIMOGES mark. Complainant also claims rights in the full LIMOGES JEWELRY mark (Reg. No. 3,639,351 registered June 18, 2009), but Respondent’s domain name registration predates the registration of the LIMOGES JEWELRY mark and thus need not be considered with regard to the disputed domain name.

Complainant claims the <lomogesjewelry.com> domain name is confusingly similar to its LIMOGES mark. The addition of a gTLD such as “.com” is not considered in a Policy ¶4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶4(a)(i) analysis). The disputed domain name merely changes a single letter in Complainant’s LIMOGES mark, replacing the letter “i” with the letter “o.” Slight misspellings generally do not adequately distinguish a disputed domain name from a mark. See Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar). Although the LIMOGES JEWELRY mark was registered later than the disputed domain name, the addition of a descriptive term does not adequately distinguish a domain name from a mark. See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). The <lomogesjewelry.com> domain name is confusingly similar to Complainant’s LIMOGES mark.

The Panel finds Policy ¶4(a)(i) satisfied.

Rights or Legitimate Interests

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 argues Respondent has not been commonly known by the disputed domain name and has therefore not demonstrated rights or legitimate interests in the disputed domain name under Policy ¶4(c)(ii). The WHOIS information now identifies “COMDOT INTERNET SERVICES PRIVATE LIMITED” as the registrant of the domain name. Originally the WHOIS information listed PrivacyProtect.org as the registrant. Complainant is not affiliated with Respondent and has not authorized Respondent to use the LIMOGES mark. When the WHOIS information markedly differs from the disputed domain name, it is clear the Respondent is not commonly known by the disputed domain name. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). Respondent is not commonly known by the disputed domain name and has not established rights or legitimate interests pursuant to Policy ¶4(c)(ii).

Complainant claims Respondent is using the disputed domain name to redirect users to a web page featuring generic links to third-party websites, some of which compete with Complainant’s business. Complainant claims this demonstrates Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, pursuant to Policy ¶¶4(c)(i) and 4(c)(iii). Displaying hyperlinks to competitors on a resolving website does not demonstrate a bona fide offering or a legitimate noncommercial or fair use of a disputed domain name, leading to the conclusion Respondent has not demonstrated rights or legitimate interests under Policy ¶¶4(c)(i) or 4(c)(iii). 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).

Respondent originally registered the disputed domain using a privacy service. This means the registrant owns bare legal title and has no rights to the domain name other than to hold it for the undisclosed principal. The undisclosed principal does not acquire any rights to the domain name because it doesn’t publicly associate its name to the disputed domain name. This raises the rebuttable presumption Respondent has no rights to the disputed domain name in a commercial context. Respondent has done nothing to rebut this presumption.

The Panel finds Policy ¶4(a)(ii) satisfied.

Registration and Use in Bad Faith

Complainant points out Respondent has listed the disputed domain name for sale. However, Complainant does not allege Respondent is selling the domain names at an excessive cost (which is required under the UDRP). Complainant argues this offer to sell a confusingly similar domain names mark is evidence of bad faith registration and use under Policy ¶4(b)(i). The Panel is not persuaded under the facts of this case. Respondent conduct on this point has failed to demonstrate bad faith registration and use under Policy ¶4(b)(i). Perhaps Respondent would have accepted a payment which only covered its out of pocket expenses; perhaps not. The Panel should not speculate.

Complainant argues Respondent has demonstrated a pattern of bad faith registration and use under Policy ¶4(b)(ii), and sites multiple other UDRP decisions against Respondent. See Charlotte Russe Merchandising, Inc. v. COMDOT INTERNET SERVICES PRIVATE LIMITED, FA 1321474 (Nat. Arb. Forum June 8, 2010); Shutterfly, Inc. v. COMDOT INTERNET SERVICES PRIVATE LIMITED, FA 1460919 (Nat. Arb. Forum Nov. 2, 2012); Virtual World Entertainment LLC v. Comdot Internet Services Private Limited, FA 1128328 (Nat. Arb. Forum March 5, 2008). Once again, Complainant has failed to claim Respondent’s actions have prevented Complainant from expressing its trademark in a domain name (Complainant has limogesjewelry.com). Some past panels have found prior UDRP proceedings to be sufficient cause for an inference of bad faith relating to the registration and use of subsequent domain names. 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). This Panel is not convinced by the logic of those decisions.

Complainant claims Respondent has set up a “click through” website, containing links that promote products that compete with Complainant’s business. Complainant claims this disrupts Complainant’s business and is evidence of bad faith under Policy ¶4(b)(iii). There is no doubt having a parking page consisting primarily of links to competitors’ web sites constitutes disruption under Policy ¶4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶4(b)(iii).”). The Panel finds Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶4(b)(iii).

Complainant claims Respondent likely receives revenue when misdirected Internet users click these links and Respondent is intentionally using a domain name confusingly similar to Complainant’s LIMOGES mark in order to attract users to its website. Complainant argues this demonstrates bad faith under Policy ¶4(b)(iv). This Panel agrees and finds Respondent is trying to profit by attracting users seeking Complainant’s website, which adequately demonstrates Respondent’s bad faith registration and use pursuant to Policy ¶4(b)(iv), as past panels have done. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).

Complainant describes Respondent’s behavior as typosquatting and claims that this is, in itself, evidence of bad faith. This Panel disagrees. Typosquatting is not listed in the UDRP as a ground for finding bad faith. If a domain name is similar to a mark but no one is confused, it does not violate the UDRP.

Finally, Respondent registered the disputed domain name using a privacy service. This Panel has held such behavior in the commercial context raises the rebuttable presumption of bad faith registration and use. Respondent has done nothing to rebut this presumption, so the Panel finds Respondent registered and uses the disputed domain name in bad faith.

The Panel finds Policy ¶4(a)(iii) satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.

Accordingly, it is Ordered the <lomogesjewelry.com> domain name be TRANSFERRED from Respondent to Complainant.

Houston Putnam Lowry, Chartered Arbitrator, Panelist

Dated: Friday, May 17, 2013