The Neiman Marcus Group, Inc. v.
Fashionid.com
Claim Number: FA0304000155176
Complainant is
The Neiman Marcus Group, Inc., Dallas, TX, USA (“Complainant”) represented
by David J. Steele of Christie, Parker & Hale LLP. Respondent
is Fashionid.com, CHINA (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <neimansmarcus.com> registered with Onlinenic,
Inc.
The
undersigned certifies that he or she has acted independently and impartially
and to the best of his or her knowledge has no known conflict in serving as
Panelist in this proceeding.
James
A. Crary as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on April 18, 2003; the Forum received a hard copy of the
Complaint on April 22, 2003.
On
April 25, 2003, Onlinenic, Inc. confirmed by e-mail to the Forum that the
domain name <neimansmarcus.com> is registered with Onlinenic, Inc.
and that Respondent is the current registrant of the name. Onlinenic, Inc. has
verified that Respondent is bound by the Onlinenic, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the
"Policy").
On
April 25, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 15, 2003 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e-mail, post and fax, to all entities and persons
listed on Respondent's registration as technical, administrative and billing
contacts, and to postmaster@neimansmarcus.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
June 2, 2003, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the Forum appointed James A. Crary as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the 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."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 makes the following assertions:
1. Respondent’s <neimansmarcus.com>
domain name is confusingly similar to Complainant’s NEIMAN MARCUS mark.
2. Respondent does not have any rights or
legitimate interests in the <neimansmarcus.com> domain name.
3. Respondent registered and used the <neimansmarcus.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
holds several domain name registrations with the United States Patent and
Trademark Office (“USPTO”) for the NEIMAN MARCUS mark (Reg. No. 601,375
registered on January 25, 1955) in relation to high-end clothing. Complainant
operates a website at <neimanmarcus.com>, which provides online retailing
of Complainant’s fashions.
Respondent
registered the <neimansmarcus.com> domain name on March 4, 2003.
Respondent is using the disputed domain name to redirect Internet traffic to
<domainsponsor.com>, a portal website.
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."
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.
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.
Complainant has
established its rights in the NEIMAN MARCUS mark through registration with the
USPTO and continuous use in commerce since 1907.
Respondent’s <neimansmarcus.com>
domain name is confusingly similar to Complainant’s mark because the disputed
domain name appropriates Complainant’s entire mark and merely adds the letter
“s” between the two words of the mark and the generic top-level domain (gTLD)
“.com” to the end of the mark. Neither the addition of the letter “s” nor the
gTLD “.com” sufficiently differentiate the disputed domain name from the
Complainant’s mark with regard to Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July
13, 2000) (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); see also Blue Sky Software Corp. v. Digital Sierra Inc., D2000-0165 (WIPO
Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical
to Complainant’s registered ROBOHELP trademark, and that the "addition of
.com is not a distinguishing difference").
The Panel finds
that Complainant has established Policy ¶ 4(a)(i).
Respondent has
not submitted a Response to Complainant’s allegations. Thus, the Panel is
permitted to accept all of the reasonable allegations and inferences in the
Complaint as true. See 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”); see also Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that Complainant’s allegations are true unless clearly contradicted
by the evidence).
Furthermore, the
Panel may presume that Respondent lacks any rights to or legitimate interests
in the disputed domain name because of Respondent’s failure to answer the
Complaint. See 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); see also Geocities v. Geociites.com, D2000-0326
(WIPO June 19, 2000) (finding that Respondent has no rights or legitimate
interests in the domain name because the Respondent never submitted a response
or provided the Panel with evidence to suggest otherwise).
Respondent is
using the <neimansmarcus.com> domain name to redirect Internet
traffic to <domainsponsor.com>, a portal website. The use of a domain
name confusingly similar to a famous mark to divert Internet traffic to a
commercial website is not a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy
¶ 4(c)(iii). See Am. Online, Inc.
v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding
that use of Complainant’s mark “as a portal to suck surfers into a site
sponsored by Respondent hardly seems legitimate”); see also MSNBC Cable, LLC v. Tysys.com,
D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in
the famous MSNBC mark where Respondent attempted to profit using the
Complainant’s mark by redirecting Internet traffic to its own website).
Respondent has
offered no proof and there is no evidence in the record that indicates
Respondent is commonly known by NEIMANS MARCUS or <neimansmarcus.com>.
Thus, Respondent has failed to demonstrate that it has rights to or legitimate
interests in the disputed domain name under Policy ¶ 4(c)(ii). See 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 Great S. Wood Pres., Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000)
(finding that Respondent was not commonly known by the domain name
<greatsouthernwood.com> where Respondent linked the domain name to
<bestoftheweb.com>).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent is
engaged in a practice commonly referred to as “typosquatting.” Typosquatting
involves the registration of common misspellings of famous marks and the
diversion of Internet users who misspell famous marks for commercial gain.
Typosquatting has been recognized as evidence of bad faith with regard to
Policy ¶ 4(a)(iii). See Nat’l Ass’n of
Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21,
2003) (“Typosquatting is the intentional misspelling of words with 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.”); see also Hewlett-Packard
Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding
<hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant).
Moreover,
Respondent is using the <neimansmarcus.com> domain name to divert
Internet traffic to a portal website. Respondent’s use of a domain name
confusingly similar to a famous mark to attract Internet users to its website
for commercial gain by creating a likelihood of confusion with Complainant’s
mark is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iv). See Am. Online, Inc. v.
Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad
faith where Respondent registered and used an infringing domain name to attract
users to a website sponsored by Respondent); see also Drs. Foster & Smith, Inc. v. Lalli,
FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent
directed Internet users seeking Complainant’s site to its own website for
commercial gain).
The Panel finds
that Complainant has established Policy ¶ 4(a)(iii).
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly, it
is Ordered that the <neimansmarcus.com> domain name be TRANSFERRED
from Respondent to Complainant.
James a. Crary, Panelist
Dated:
June 10, 2003
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