LTD Commodities, LLC v. Network Marketing
Claim Number: FA0602000649455
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 Network Marketing (“Respondent”), P.O. Box W13210, St. John's, AG.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ltcommodities.com>, registered with Enom, 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.
Tyrus R. Atkinson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 21, 2006; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2006.
On February 22, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <ltcommodities.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 February 23, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 15, 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@ltcommodities.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 21, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, 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 <ltcommodities.com> domain name is confusingly similar to Complainant’s LTD COMMODITIES mark.
2. Respondent does not have any rights or legitimate interests in the <ltcommodities.com> domain name.
3. Respondent registered and used the <ltcommodities.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LTD Commodities, LLC, is a catalog mail-order
distributor of general merchandise, including toys, housewares, and gifts. Complainant has continuously and extensively
used the LTD COMMODITIES mark in connection with its catalog mail-order
business since 1963. Complainant
registered the <ltdcommodities.com> domain name on May 31, 1996.
Complainant has registered the LTD COMMODITIES mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,409,188 issued November 28, 2000). Complainant also holds trademark registrations with the USPTO for the following marks: LTD COMMODITIES, INC (Reg. No. 2,315,412 issued February 8, 2000 and Reg. No. 2,927,697 issued February 22, 2005) and LTD COMMODITIES, LLC (Reg. No. 2,986,121 issued August 16, 2005).
Respondent registered the <ltcommodities.com> domain name on October 9, 2004. Respondent’s domain name resolves to a website providing links to third-party websites offering content 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 has established rights to the LTD COMMODITIES
mark by registering the mark with the USPTO.
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.”).
Respondent’s <ltcommodities.com> domain name is confusingly similar to Complainant’s LTD COMMODITIES mark pursuant to Policy ¶ 4(a)(i), because it merely omits the letter “d” from Complainant’s mark. In Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002), the panel found that the respondent’s <compq.com> domain name was confusingly similar to the complainant’s COMPAQ mark because the exclusion of one letter from the mark was such a “small change” that it did not “diminish the confusing similarity” between the domain name and the mark. Because Respondent’s domain name also merely omits one letter from Complainant’s LTD COMMODITIES mark, the <ltcommodities.com> domain name is, therefore, confusingly similar to Complainant’s mark. See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and
legitimate interests in the <ltcommodities.com> domain name. Complainant must first make a prima facie
case in support of its allegations, and then the burden shifts to
Respondent to show it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii). See 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 has no right or
legitimate interest is sufficient to shift the burden of proof to the
respondent to demonstrate that such a right or legitimate interest does exist);
see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1,
2002) (“Because Complainant’s Submission constitutes a prima facie case
under the Policy, the burden effectively shifts to Respondent. Respondent’s
failure to respond means that Respondent has not presented any circumstances
that would promote its rights or legitimate interests in the subject domain
name under Policy ¶ 4(a)(ii).”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <ltcommodities.com>
domain name. See Pavillion Agency, Inc. v. Greenhouse Agency
Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure
to respond can be construed as an admission that they have no legitimate
interest in the domain names); see also Geocities v. Geocities.com, D2000-0326 (WIPO June 19, 2000)
(finding that the 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).
However, the Panel will now examine the record
to determine if Respondent has rights or legitimate interests under Policy ¶
4(c).
Respondent has registered the domain name under the name “Network
Marketing,” and there is no other evidence in the record suggesting that
Respondent is commonly known by the <ltcommodities.com> domain
name. Thus, Respondent has not
established rights or legitimate interests in the <ltcommodities.com>
domain name pursuant to Policy ¶ 4(c)(ii).
See 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); see also 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).
Furthermore, Respondent’s <ltcommodities.com>
domain name, which is confusingly similar to Complainant’s LTD COMMODITIES
mark, resolves to a website featuring links to content unrelated to
Complainant. In Black & Decker
Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002),
the respondent was using the <blackandecker.com> domain name, which the
panel held was confusingly similar to the complainant’s BLACK & DECKER
mark, to redirect Internet users to third-party commercial websites. The panel concluded that the respondent
presumably received click-through fees for each consumer it diverted to other
websites, and that such diversion for commercial gain did not constitute a bona
fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial fair use pursuant to Policy ¶ 4(c)(iii). In this case, Respondent is also redirecting
Internet users seeking Complainant’s catalog mail-order business to other
websites, and it presumably profits from this diversion scheme. Therefore, Respondent lacks rights and
legitimate interests in the <ltcommodities.com> domain name
pursuant to Policy ¶¶ 4(c)(i) and 4(c)(iii).
See Geoffrey, Inc. v. Toyrus.com, FA 150406 (Nat. Arb. Forum Apr.
25, 2003) (holding that the respondent’s use of the <toyrus.com> domain
name, a simple misspelling of the complainant’s mark, to divert Internet users
to a website that featured pop-up advertisements and an Internet directory, was
neither a bona fide offering of goods or services nor a legitimate
noncommercial or fair use of the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <ltcommodities.com>
domain name, which is confusingly similar to Complainant’s LTD COMMODITIES
mark, to redirect Internet users seeking Complainant’s catalog mail-order
business to a website displaying links to content unrelated to
Complainant. Respondent
likely receives referral fees for each consumer it diverts to other
websites and is, therefore, taking advantage of the confusing similarity
between the disputed domain name and Complainant’s mark. Such use of the disputed domain name to
profit off of the goodwill associated with Complainant’s mark is indicative of
bad faith registration and use under 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 complaint, it may
be concluded that the respondent is using the domain name in bad faith pursuant
to Policy ¶ 4(b)(iv)); see also 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).
Furthermore, Respondent’s use of the <ltcommodities.com>
domain name, which is merely a typosquatted variation of Complainant’s LTD
COMMODITIES mark, is evidence that Respondent registered and used its disputed
domain name in bad faith pursuant to Policy ¶ (4)(a)(iii). In Zone Labs,
Inc. v. Zuccarini, FA 190613 (Nat.
Arb. Forum Oct. 15, 2003), the panel concluded that the respondent’s
registration and use of the <zonelarm.com> domain name, which was
confusingly similar to the complainant’s ZONE ALARM mark, constituted bad faith
under Policy ¶ 4(a)(iii) because respondent was capitalizing on the
typographical errors of Internet users for its own commercial gain. Here, Internet users seeking
Complainant’s website at the <ltdcommodities.com> domain name who
mistakenly omit the letter “d” reach Respondent’s website and may become
confused as to the source and affiliation of Respondent’s site with
Complainant’s LTD COMMODITIES mark.
Therefore, Respondent is taking advantage of Internet users’ mistakes
for its own commercial gain, which violates 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)).
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 <ltcommodities.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Panelist
Dated: April 4, 2006
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