national arbitration forum

 

DECISION

 

Bose Corporation v. DN4Ever

Claim Number: FA0611000842094

 

PARTIES

Complainant is Bose Corporation (“Complainant”), represented by Christopher Finnerty, of Wolf, Block, Schorr & Solis-Cohen LLP, One Boston Place, Floor 40, Boston, MA 02108.  Respondent is DN4Ever (“Respondent”), 19 Wonga St., Canterbury, NSW AU 2193.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwbose.com>, registered with Onlinenic, Inc.

 

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.

 

Terry F. Peppard as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on November 14, 2006; the National Arbitration Forum received a hard copy of the Complaint on November 15, 2006.

 

On November 15, 2006, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwbose.com> domain name is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name.  Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, 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 November 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 11, 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@wwwbose.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On December 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.

 

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:

 

Complainant manufactures and sells sound systems under the BOSE mark, including speakers, transducers, amplifiers, inverters, and radios. 

 

Complainant has continuously used the BOSE mark in connection with these products since 1966. 

 

Complainant maintains a website at the <bose.com> domain name.

 

Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the BOSE mark (including Reg. No. 829,402, issued May 30, 1967; Reg. No. 991,271, issued August 20, 1974; Reg. No. 1,297,699, issued September 25, 1984). 

 

Respondent’s <wwwbose.com> domain name, which it registered on December 3, 2001, resolves to a website selling Complainant’s products without Complainant’s consent.

 

Respondent profits from this unauthorized activity.

 

Respondent’s <wwwbose.com> domain name is confusingly similar to Complainant’s BOSE mark.

 

Respondent does not have any rights or legitimate interests in the <wwwbose.com> domain name.

 

Respondent registered and uses the <wwwbose.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(1)   the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and

(2)   Respondent has no rights or legitimate interests in respect of the domain name; and

(3)   the same domain name was registered and is being used by Respondent in bad faith.

 

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 a 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:

 

i.   the domain name registered by Respondent is identical or confusingly similar to a

     trademark or service mark in which Complainant has rights; and

ii.  Respondent has no rights or legitimate interests in respect of the domain name; and

iii. the domain name has been registered and is being used in bad faith.

 

Identical and/or Confusingly Similar

 

Complainant’s numerous trademark registrations for its BOSE mark demonstrate its rights in the mark for purposes of satisfying Policy ¶ 4(a)(i).  See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that a complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also VICORP Rests., Inc. v. Triantafillos, FA 485933 (Nat. Arb. Forum July 14, 2005): “Complainant has established rights in the BAKERS SQUARE mark by registering it with the United States Patent and Trademark Office (“USPTO”).”

Respondent’s <wwwbose.com> domain name incorporates Complainant’s entire registered BOSE mark and merely adds the letters “www.”  In Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000), a panel found that the domain name <wwwbankofamerica.com> was confusingly similar to a complainant’s BANK OF AMERICA mark, stating that it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet.”  In this case, Respondent has also eliminated the period between “www” and Complainant’s mark, which does not sufficiently distinguish the <wwwbose.com> domain name from the BOSE mark.  As a result, the Panel finds that the domain name <wwwbose.com> is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (finding that confusing similarity was established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark).

 

The Panel therefore concludes that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain name.  Complainant has the initial burden of proof to establish that Respondent lacks rights or legitimate interests in the domain name.  Once Complainant makes out a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):

 

Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.

 

Respondent’s failure to answer the Complaint raises a presumption that Respondent has no rights to or legitimate interests in the disputed domain name.  See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002):

 

Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.

 

However, the Panel will now examine the record to determine if there is any basis for concluding that Respondent has rights or legitimate interests under Policy ¶ 4(c).

 

In this connection, we first observe that Respondent has registered the <wwwbose.com> domain name while identifying itself as “DN4Ever,” and there is no other evidence in the record before us suggesting that Respondent is commonly known by the disputed domain name.  Accordingly, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See, for example, Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that a respondent does not have rights in a domain name where that respondent is not known by the mark); to the same effect, see also Coppertown Drive-Thru Systems, LLC v. Snowden, FA 715089 (Nat. Arb. Forum Jul. 17, 2006).

 

Moreover, the undisputed evidence is that Respondent uses the <wwwbose.com> domain name to redirect Internet users to its own website, where it sells Complainant’s products without authorization. This 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).  In G.D. Searle & Co. v. Mahony, FA 112559 (Nat. Arb. Forum June 12, 2002), a panel concluded that a respondent’s use of a confusingly similar domain name to solicit pharmaceutical orders without a license or authorization from a complainant did not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i).  Because Respondent here is also selling goods without authorization by means of a domain name confusingly similar to a registered mark, we conclude that Respondent does not have rights or legitimate interests in the disputed domain name under either Policy ¶ 4(c)(i) or ¶ 4(c)(iii).  Also on the point, see Nat’l Collegiate Athletic Ass’n v. Halpern, D2000-0700 (WIPO Dec. 10, 2000).

 

Additionally, Respondent’s <wwwbose.com> is simply a mistyped version of Complainant’s BOSE mark, omitting the customary period, and meant to capitalize on Internet users’ common typographical mistakes.  In Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003), a panel found that a respondent’s <wwwdinersclub.com> domain name provided evidence in and of itself that that respondent had no rights or legitimate interests in the disputed domain name.  We agree.  Accordingly, the construction of Respondent’s domain name itself further indicates that Respondent has no rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).  See also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003). 

 

The Panel thus concludes that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent’s diversionary use of the <wwwbose.com> domain name for commercial gain, which it does not deny, comes within Policy ¶ 4(b)(iv), for by linking the domain name to its own commercial website, Respondent takes advantage of the confusing similarity between the disputed domain name and Complainant’s BOSE mark in order to profit from the goodwill associated with the mark.  See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that a respondent registered and used a domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because that respondent used a contested domain name to attract Internet users to its commercial website); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where a respondent’s domain name resolved to a website featuring links to third-party websites that offered services similar to a complainant’s services by taking advantage of Internet users’ mistakes).

 

Moreover, Respondent’s use of the <wwwbose.com> domain name, which is merely a typo-squatted variation of Complainant’s legitimate web address, is evidence that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ (4)(a)(iii).  Internet users seeking Complainant’s website at the <bose.com> domain name who mistakenly omit the period after “www” resolve to Respondent’s website, leading to consumer confusion over the possible source and affiliation of Respondent’s site with Complainant’s mark.  See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding that the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith); see also RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003).

 

Finally under this head, we note that Respondent is charged with at least constructive knowledge of Complainant’s rights in its BOSE mark owing to its multiple registrations with the competent authorities in the United States, so that Respondent’s recent registration of a domain name confusingly similar to Complainant’s registered mark is, without more, evidence of Respondent’s bad faith registration and use of the disputed domain name within the compass of the Policy.  Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002).  See also Miller Brewing Co. v. km, FA 158252 (Nat. Arb. Forum Jul. 3, 2003).

 

For these reasons, the Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.

 

Accordingly, it is Ordered that the <wwwbose.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Terry F. Peppard, Panelist

Dated:  December 29, 2006

 

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