LTD Commodities, LLC v. Domaincar
Claim Number: FA0601000632639
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ltdcommoditiess.com> and <ltscommodities.com>, registered with Domaindoorman, LLC, and Dstr Acquisition Vii, LLC, respectively.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 19, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 19, 2006.
On January 20, 2006, Dstr Acquisition Vii, LLC confirmed by e-mail to the National Arbitration Forum that the <ltscommodities.com> domain name is registered with Dstr Acquisition Vii, LLC and that Respondent is the current registrant of the name. Dstr Acquisition Vii, LLC has verified that Respondent is bound by the Dstr Acquisition Vii, LLC 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 January 23, 2006, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <ltdcommoditiess.com> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, LLC 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 January 23, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 13, 2006 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@ltdcommoditiess.com and postmaster@ltscommodities.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 21, 2006 , pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <ltdcommoditiess.com> and <ltscommodities.com> domain names are confusingly similar to Complainant’s LTD COMMODITIES mark.
2. Respondent does not have any rights or legitimate interests in the <ltdcommoditiess.com> and <ltscommodities.com> domain names.
3. Respondent registered and used the <ltdcommoditiess.com> and <ltscommodities.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LTD Commodities, LLC, is the assignee of the trademark registration rights for the LTD COMMODITIES mark. LTD Commodities, Inc. first registered the LTD COMMODITIES mark with the United States Patent and Trademark Office (“USPTO”) on November 28, 2000 (U.S. Reg. No. 2,409,188), and it assigned the mark to Complainant on January 15, 2003. Complainant is also the assignee of the trademark registrations for the following marks: LTD COMMODITIES, INC (U.S. Reg. No. 2,315,412, registered on February 8, 2000, and U.S. Reg. No. 2,927,697, registered on February 22, 2005) and LTD COMMODITIES, LLC (U.S. Reg. No. 2,986,121, registered on August 16, 2005).
Since 1963, Complainant has been in the business of catalog
mail order distributorships for general merchandise, including toys,
housewares, and gifts. In 1996,
Complainant registered and began conducting business from its commercial
website located at the <ltdcommodities.com> domain name.
Respondent registered the <ltscommodities.com> and <ltdcommoditiess.com> domain names on October 11, 2002 and October 16, 2005, respectively. Respondent has used both of the disputed domain names to operate websites providing links to businesses unrelated to Complainant.
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’s registrations of its LTD COMMODITIES marks
with the USPTO sufficiently establish Complainant’s rights in the mark under
Policy ¶ 4(a)(i). See 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.”); see also 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.”).
Complainant has also demonstrated that Respondent’s <ltdcommoditiess.com> and <ltscommodities.com> domain names are confusingly similar to Complainant’s LTD COMMODITIES mark. Respondent’s <ltdcommoditiess.com> domain name incorporates Complainant’s mark in its entirety adding only the letter “s” and the generic top-level domain “.com.” See Nat’l Geographic Soc’y v. Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to the complainant’s NATIONAL GEOGRAPHIC mark); see also Cream Pie Club v. Halford, FA 95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that “the addition of an ‘s’ to the end of the complainant’s mark, ‘Cream Pie’ does not prevent the likelihood of confusion caused by the use of the remaining identical mark. The domain name <creampies.com> is similar in sound, appearance, and connotation”).
Additionally, Respondent’s <ltscommodities.com> domain name is confusingly similar to Complainant’s LTD COMMODITIES mark, as the disputed domain name replaces the letter “d” in Complainant’s mark with the letter “s,” and adds the generic top-level domain “.com.” See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); cf. Victoria's Secret v. Internet Inv. Firm Trust, FA 94344 (Nat. Arb. Forum May 9, 2000) (finding the domain name <victoriasecret.com> to be confusingly similar to the complainant’s trademark, VICTORIA’S SECRET).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must initially prove that Respondent does not have rights or legitimate interests with respect to the disputed domain name. Nevertheless, once Complainant establishes a prima facie case, the burden then shifts to Respondent to demonstrate that it does have rights or legitimate interests in the domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (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 “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel finds that Complainant has presented a prima facie case, and will evaluate whether the evidence on record demonstrates rights or legitimate interests for Respondent under Policy ¶ 4(c).
Based on the evidence on record, Respondent is not commonly known by the <ltdcommoditiess.com> or <ltscommodities.com> domain name. Respondent’s WHOIS information does not indicate that Respondent is now, or has ever been commonly known by either of the disputed domain names. Therefore, Respondent has not established rights or legitimate interests in the disputed domain names 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).
Furthermore, the evidence demonstrates that Respondent is using the <ltdcommoditiess.com> and <ltscommodities.com> domain names for websites that provide links to unrelated businesses. In light of the slight misspellings of Complainant’s mark in Respondent’s domain names, Respondent engaged in typosquatting, intentionally utilizing a misspelling of Complainant’s mark in the disputed domain names for the purpose of diverting Internet consumers to Respondent’s website. Such use does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or make a legitimate noncommercial or fair use of the domain names under Policy ¶ 4(c)(iii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent utilizes confusingly similar versions of Complainant’s LTD COMMODITIES mark in the <ltdcommoditiess.com> and <ltscommodities.com> domain names to capitalize on typographical errors of Internet users seeking Complainant’s website. Consequently, Respondent’s use of Complainant’s mark in an effort to engage in typosquatting constitutes registration and use of the domain names in bad faith under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)); see also 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).”).
Furthermore, Respondent is using the <ltdcommoditiess.com>
and <ltscommodities.com> domain names, which are confusingly
similar to Complainant’s LTD COMMODITIES mark, to divert Internet users seeking
Complainant’s products to third-party websites offering unrelated content. The Panel infers that Respondent receives
click-through fees for misdirecting consumers to these websites. Therefore, Respondent is taking advantage of
the likelihood of confusion between Respondent’s domain name and Complainant’s
mark and capitalizing on the goodwill associated with the mark. The Panel finds that such use constitutes
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb.
Forum Mar. 21, 2000) (finding bad faith where the respondent registered and
used a domain name confusingly similar to the complainant’s mark to attract
users to a website sponsored by the respondent); see also Am. Univ. v. Cook, FA
208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name
that incorporates another's mark with the intent to deceive Internet users in
regard to the source or affiliation of the domain name is evidence of bad
faith.”); see also 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 complaint, it may
be concluded that the respondent is using the domain name in bad faith pursuant
to Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <ltdcommoditiess.com> and <ltscommodities.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: March 3, 2006
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