LTD Commodities, LLC v. Mo Domains
Claim
Number: FA0505000479551
Complainant is LTD Commodities, LLC (“Complainant”), represented
by Irwin C. Alter of Law Offices of Alter and Weiss, 19 S. LaSalle, Suite 1650, Chicago, IL 60603. Respondent is Mo Domains (“Respondent”), 235 W. 88 St., New York, NY 10025.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <lydcommodities.com>, registered with Intercosmos
Media Group.
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.
Tyrus
R. Atkinson, Jr., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on May
18, 2005; the National Arbitration Forum received a hard copy of the Complaint
on May 20, 2005.
On
May 26, 2005, Intercosmos Media Group confirmed by e-mail to the National
Arbitration Forum that the domain name <lydcommodities.com> is
registered with Intercosmos Media Group and that Respondent is the current
registrant of the name. Intercosmos Media Group has verified that Respondent is
bound by the Intercosmos Media Group 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
May 26, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 15, 2005 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@lydcommodities.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 National Arbitration
Forum transmitted to the parties a Notification of Respondent Default.
On
June 22, 2005, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the National Arbitration Forum appointed Tyrus R.
Atkinson, Jr., 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." 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 makes the following assertions:
1. Respondent’s <lydcommodities.com>
domain name is confusingly similar to Complainant’s LTD COMMODITIES mark.
2. Respondent does not have any rights or
legitimate interests in the <lydcommodities.com> domain name.
3. Respondent registered and used the <lydcommodities.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant, LTD Commodities, LLC, has been in the catalog
mail order distributorship business since 1963 for general merchandise such as
toys, housewares and gifts. Each year,
Complainant spends millions of dollars to print, purchase, make and advertise
its mail order catalog. In addition to
its catalog business, Complainant conducts business from its commercial website
at the <ltdcommodities.com> domain name, which has been in existence
since May 31, 1996.
Complainant is the holder of several registrations with the United States
Patent and Trademark Office for the LTD COMMODITIES mark (Reg. No. 2,409,188
issued November 28, 2000; Reg. No. 2,315,412 issued February 8, 2000; and Reg.
No. 2,927,697 issued February 22, 2005).
Respondent registered the <lydcommodities.com> domain name on December 22, 2004. The disputed domain name resolves to a
portal website that links to websites that offer a variety of goods and
services.
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. 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.”).
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
provided proof that it holds registrations with the USPTO for the LTD
COMMODITIES mark, which is prima facie proof of Complainant’s rights in
the mark. Due to Respondent’s default,
Respondent has not presented any evidence to rebut Complainant’s prima facie
case of rights. Therefore, the Panel
finds that, for the purposes of Policy ¶ 4(a)(i), Complainant has rights in the
LTD COMMODITIES mark. See Men’s
Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under
U.S. trademark law, registered marks hold a presumption that they are
inherently distinctive and have acquired secondary meaning.”); see also Dell
Inc. v. Innervision Web Solutions, FA 445601 (Nat. Arb. Forum May 23, 2005)
(“Complainant proves that it has rights in the trademark and service mark,
DELL, as a result of Complainant’s registrations with the United States Patent
and Trademark Office, which predate the registration of the disputed domain
name.”).
Furthermore,
Complainant asserts that the <lydcommodities.com> domain name is
confusingly similar to Complainant’s LTD COMMODITIES mark, because the domain
name takes advantage of a simple typographical error that may result due to the
fact that the letter “y” is located adjacent to the letter “t” on the standard
“QWERTY” keyboard used in the United States.
Replacing one letter of Complainant’s mark with a letter that has a
likelihood of being inadvertently struck on a standard keyboard by an Internet
user is not enough to distinguish the disputed domain name from Complainant’s
mark, and the Panel finds that the domain name is confusingly similar to the
mark in satisfaction of Policy ¶ 4(a)(i).
See Toronto-Dominion Bank
v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain
names <tdwatergouse.com> and <dwaterhouse.com> are virtually identical
to the complainant’s TD WATERHOUSE name and mark); see also Victoria’s Secret v. Zuccarini, FA 95762
(Nat. Arb. Forum Nov. 18, 2000) (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).
Complainant has
satisfied Policy ¶ 4(a)(i).
Complainant
bears the initial burden of establishing that Respondent lacks rights and
legitimate interests in the disputed domain name. However, once Complainant has made a prima facie case, the
burden shifts to Respondent to establish a claim of rights or legitimate
interests in the disputed domain name, which may be done in accordance with one
of the three safe harbor provisions under Policy ¶ 4(c). In this instance, Complainant has met its
initial burden and Respondent has failed to contest Complainant’s
allegations. Therefore, the Panel
determines that Respondent has not established rights or legitimate interests
in the disputed domain name. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that, where the complainant has asserted that the respondent has no
rights or legitimate interests with respect to the domain name, it is incumbent
on the respondent to come forward with concrete evidence rebutting this
assertion because this information is “uniquely within the knowledge and
control of the respondent”); see also Do The Hustle, LLC v. Tropic
Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once the complainant
asserts that the respondent has no rights or legitimate interests with respect
to the domain, the burden shifts to the respondent to provide credible evidence
that substantiates its claim of rights and legitimate interests in the domain
name); see also Parfums Christian
Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not
submitting a response, the respondent has failed to invoke any circumstance
which could demonstrate any rights or legitimate interests in the domain name).
The Panel has
before it no evidence suggesting that Respondent is commonly known by the <lydcommodities.com>
domain name. The only evidence of
Respondent’s identity is the WHOIS registration information for the domain
name, which lists Respondent as “Mo Domains.”
Without any response from Respondent to present any further evidence,
the Panel concludes that Respondent has not established rights or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23,
2001) (finding that the respondent does not have rights in a domain name when
the respondent is not known by the mark).
Complainant
contends that the <lydcommodities.com> domain name registered by
Respondent diverts Internet traffic intended for Complainant to a portal
website that includes connections to websites that offer a variety of goods and
services. Using a domain name that is
confusingly similar to a mark in which Complainant has rights to operate a
portal website, through which Respondent presumably derives commissions for its
diversions to other websites, does not constitute a bona fide offering
of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii). See
WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12,
2003) (finding that the respondent’s use of the disputed domain name to redirect
Internet users to websites unrelated to the complainant’s mark, websites where
the respondent presumably receives a referral fee for each misdirected Internet
user, was not a bona fide offering of goods or services as contemplated by the
Policy); see also Black
& Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June
24, 2002) (holding that the respondent’s use of the disputed domain name to
redirect Internet users to commercial websites, unrelated to the complainant
and presumably with the purpose of earning a commission or pay-per-click
referral fee did not evidence rights or legitimate interests in the domain
name); see also Am. Online, Inc.
v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding
that use of the complainant’s mark “as a portal to suck surfers into a site
sponsored by Respondent hardly seems legitimate”).
Complainant has
satisfied Policy ¶ 4(a)(ii).
Respondent is
using the <lydcommodities.com> domain name to intentionally
attract Internet users who are likely searching for Complainant’s LTD
COMMODITIES products and services to Respondent’s commercial website that
provides connections to various products and services. Due to the confusing similarity between
Complainant’s mark and the domain name, Internet users may become confused as
to Complainant’s affiliation with Respondent’s commercial domain name. Furthermore, Respondent presumably receives
commissions for connecting users to third-party websites via Respondent’s
website. Such use by Respondent is evidence
of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708
(Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from
its diversionary use of the complainant's mark when the domain name resolves to
commercial websites and the respondent fails to contest the the complaint, it
may be concluded that the respondent is using the domain name in bad faith
pursuant to Policy ¶ 4(b)(iv)); see also CMG Worldwide, Inc. v.
Lombardi, FA 95966 (Nat. Arb. Forum Jan. 12, 2001) (finding that the
respondent’s use of the VINCE LOMBARDI mark to divert Internet users to its
commercial website constituted bad faith use and registration of the disputed
domain name).
The Policy lists
four circumstances under Policy ¶ 4(b), which constitute evidence of bad faith
registration and use. However, this
list is not intended to be comprehensive, and the Panel has, therefore, chosen
to consider additional factors which support its finding of bad faith
registration and use. See Twentieth
Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000)
(finding that in determining if a domain name has been registered in bad faith,
the panel must look at the “totality of circumstances”); see also Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad
faith] in Paragraph 4(b) are intended to be illustrative, rather than
exclusive.”).
The <lydcommodities.com>
domain name registered by Respondent includes a typosquatted version of
Complainant’s LTD COMMODITIES mark.
Thus, Respondent is engaging in the practice of “typosquatting” by
taking advantage of a potential typographical error made by Internauts,
intending to reach Complainant’s website at the <ltdcommodities.com>
domain name, who inadvertently strike letters adjacent on the standard “QWERTY”
keyboard to some letters in Complainant’s mark. Under the Policy, typosquatting is itself evidence of bad faith
registration and use of the disputed domain name pursuant 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 Zone Labs, Inc. v.
Zuccarini, FA 190613 (Nat Arb. Forum Oct. 15, 2003) (finding that the
respondent registered and used the <zonelarm.com> domain name in bad
faith pursuant to Policy ¶ 4(a)(iii) because the name was merely a typosquatted
version of the complainant’s ZONEALARM mark); see also K.R. USA, Inc. v. So
So Domains, FA 180624 (Nat Arb. Forum Sept. 18, 2003) (finding that the
<philadelphiaenquirer.com> and <tallahassedemocrat.com> domain
names were typosquatted versions of the complainant’s THE PHILADELPHIA INQUIRER
and TALLAHASSEE DEMOCRAT marks and that this practice “has been deemed behavior
in bad faith”).
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 <lydcommodities.com> domain name be TRANSFERRED
from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated:
July 1, 2005
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