national arbitration forum

 

DECISION

 

LTD Commodities, LLC v. Mo Domains

Claim Number:  FA0505000479551

 

PARTIES

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.

 

PANEL

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.

 

PROCEDURAL HISTORY

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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

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.

 

FINDINGS

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. 

 

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."

 

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.

 

Identical and/or Confusingly Similar

 

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).

 

Rights or Legitimate Interests

 

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).

 

Registration and Use in Bad Faith

 

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).

 

DECISION

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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