Zappos.com, Inc. v. AAA Marketing World
Claim
Number: FA0508000528209
Complainant is Zappos.com, Inc. (“Complainant”),
represented by Sean F. Heneghan, of 31 Reading Hill Avenue, Melrose, MA 02176. Respondent is AAA Marketing World (“Respondent”), New South Wales 2000,
Australia.
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain names at issue are <zapp0s.com>, <zapp9s.com>,
<zappks.com>, and <zappls.com>, registered with Go
Daddy Software, Inc.
The
undersigned certifies that she has acted independently and impartially and to
the best of her knowledge has no known conflict in serving as Panelist in this
proceeding.
Sandra
Franklin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on July
29, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 1, 2005.
On
August 1, 2005, Go Daddy Software, Inc. confirmed by e-mail to the National
Arbitration Forum that the <zapp0s.com>, <zapp9s.com>,
<zappks.com> and <zappls.com> domain names are
registered with Go Daddy Software, Inc. and that Respondent is the current
registrant of the names. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software,
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
August 8, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 29, 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@zapp0s.com, postmaster@zapp9s.com,
postmaster@zappks.com, and postmaster@zappls.com by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
September 6, 2005, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed
Sandra Franklin 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <zapp0s.com>, <zapp9s.com>,
<zappks.com> and <zappls.com> domain names are
confusingly similar to Complainant’s ZAPPOS and ZAPPOS.COM marks.
2. Respondent does not have any rights or
legitimate interests in the <zapp0s.com>, <zapp9s.com>,
<zappks.com> and <zappls.com> domain names.
3. Respondent registered and used the <zapp0s.com>,
<zapp9s.com>, <zappks.com>and <zappls.com>
domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Zappos.Com, Inc., was founded in 1999 and has since become one of the most
successful retail services on the Internet.
Complainant has generated over $200 million in sales since its inception,
and has shipped shoes to over 15,000 cities across the United States.
Respondent
registered the zapp0s.com>, <zapp9s.com>, <zappks.com>
and <zappls.com> domain names on June 21, 2004. Respondent’s domain names resolve to a
website featuring links to third-party websites.
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
asserts that it has established rights in the ZAPPOS and ZAPPOS.COM marks
through registration with the USPTO. See Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003) (“Complainant's federal trademark registrations establish Complainant's
rights in the BLIZZARD mark.”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb.
Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO
establishes Complainant's rights in the mark.”).
Moreover,
Respondent’s <zapp0s.com>, <zapp9s.com>, <zappks.com>
and <zappls.com> domain names are confusingly similar to
Complainant’s ZAPPOS and ZAPPOS.COM marks, as the domain names misspell and add
various numbers to Complainant’s ZAPPOS and ZAPPOS.COM marks. Such changes are not enough to overcome the
confusingly similar aspects of Respondent’s domain names pursuant to Policy ¶
4(a)(i). See Guinness UDV N. Am., Inc. v.
Dallas Internet Servs., D2001-1055 (WIPO
Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar
to the complainant’s SMIRNOFF mark because merely removing the letter “f” from
the mark was insignificant); see
also Marriott Int'l, Inc.
v. Seocho, FA 149187 (Nat. Arb. Forum Apr.
28, 2003) (finding that the respondent's <marrriott.com> domain
name was confusingly similar to the complainant's MARRIOTT mark); see also
Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24,
2000) (finding that the respondent’s domain name <go2AOL.com> was
confusingly similar to the complainant’s AOL mark).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Respondent does
not have rights or legitimate interests in the <zapp0s.com>, <zapp9s.com>,
<zappks.com> and <zappls.com> domain names. When a
complainant establishes a prima facie case
pursuant to Policy ¶ 4(a)(ii), the burden shifts to the respondent to prove
that it has rights or legitimate interests.
Due to Respondent’s failure to respond to the Complaint, the Panel
infers that Respondent does not have rights or legitimate interests in the
disputed domain names. See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (finding that once the complainant asserts that
the respondent does not have 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 or legitimate interests in the domain name); see also Clerical Med. Inv. Group Ltd. v.
Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under
certain circumstances, the mere assertion by the complainant that the
respondent does not have rights or legitimate interests is sufficient to shift
the burden of proof to the respondent to demonstrate that such rights or
legitimate interests do exist); 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).
Moreover,
Respondent is not commonly known by the <zapp0s.com>, <zapp9s.com>,
<zappks.com> and <zappls.com> domain names. Thus, the
Panel concludes that Respondent has not established rights or legitimate
interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See
Compagnie de Saint Gobain v. Com-Union
Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate
interest where respondent was not commonly known by the mark and never applied
for a license or permission from complainant to use the trademarked name); see also Broadcom Corp. v. Intellifone Corp.,
FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate
interests because respondent is not commonly known by the disputed domain name
or using the domain name in connection with a legitimate or fair use); see also Hartford Fire Ins. Co. v.
Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that
the respondent has no rights or legitimate interests in domain names because it
is not commonly known by the complainant’s marks and the respondent has not
used the domain names in connection with a bona
fide offering of goods and services or for a legitimate noncommercial or
fair use).
Furthermore,
Respondent lacks rights and legitimate interests in the <zapp0s.com>,
<zapp9s.com>, <zappks.com> and <zappls.com> domain
names because Respondent’s misspellings and additions of various numbers to
Complainant’s ZAPPOS and ZAPPOS.COM marks constitute typosquatting. See Diners Club Int’l Ltd. v. Domain Admin******It's all in the
name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that
respondent’s <wwwdinersclub.com> domain name, a typosquatted version of
complainant’s DINERS CLUB mark, was evidence in and of itself that respondent
lacks rights or legitimate interests in the disputed domain name vis-à-vis complainant);
see also Black &
Decker Corp. v. Khan, FA 137223
(Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where
the respondent used the typosquatted <wwwdewalt.com> domain name to
divert Internet users to a search engine webpage, and failed to respond to the
complaint).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
The Panel infers
that Respondent receives click-through fees for diverting Internet users to its
commercial website. Respondent
registered and used the disputed domain names in bad faith under Policy ¶
4(b)(iv), as Respondent is using the <zapp0s.com>, <zapp9s.com>,
<zappks.com> and <zappls.com> domain names to
intentionally attract, for commercial gain, Internet users to its website, by
creating a likelihood of confusion with Complainant as to the source,
sponsorship, affiliation or endorsement of its website. See
H-D Michigan, Inc. v. Petersons Auto,
FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name
was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the
respondent’s registration and use of the infringing domain name to
intentionally attempt to attract Internet users to its fraudulent website by
using the complainant’s famous marks and likeness); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933
(Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and
used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the
respondent was using the confusingly similar domain name to attract Internet
users to its commercial website).
Furthermore, Respondent registered and used the disputed
domain names in bad faith because Respondent’s <zapp0s.com>,
<zapp9s.com>, <zappks.com> and <zappls.com> domain
names illustrate “typosquatting.”
Respondent’s addition of numbers and misspellings to Complainant’s
famous mark illustrates Respondent’s bad faith registration. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s
registration and use of [the <zonelarm.com> domain name] that capitalizes
on the typographical error of an Internet user is considered typosquatting.
Typosquatting, itself is evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).”); see also 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 Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum
Apr. 28, 2003) (finding that the respondent's
<marrriott.com> domain name was confusingly similar to the complainant's
MARRIOTT mark because "Respondent's typosquatting, by its
definition, renders the domain name confusingly similar to Complainant's
mark").
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <zapp0s.com>, <zapp9s.com>, <zappks.com>
and <zappls.com> domain names be TRANSFERRED from Respondent
to Complainant.
Sandra Franklin, Panelist
Dated:
September 20, 2005
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