Cherie Dori Inc. v. WhoisGuard Protected
Claim Number: FA0612000862890
Complainant is Cherie Dori Inc. (“Complainant”), represented by Mark
Lizerovic, of DomainStatute.com,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cheridori.com>, registered with Domainhip.com, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 15, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 4, 2007 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@cheridori.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <cheridori.com> domain name is confusingly similar to Complainant’s CHERIE DORI mark.
2. Respondent does not have any rights or legitimate interests in the <cheridori.com> domain name.
3. Respondent registered and used the <cheridori.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cherie Dori, Inc., manufactures and sells jewelry products and accessories. Complainant has utilized the CHERIE DORI mark continuously in commerce since 1989. Complainant registered the CHERIE DORI mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,727,446 issued on October 27, 1992). While a clerical error resulted in a failure to file the necessary renewal affidavit in 1998, causing the registration to expire in 1999, Complainant has continued to use the mark in commerce in connection with its jewelry and jewelry accessories.
Respondent registered the <cheridori.com>
domain name on
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 utilized the CHERIE DORI mark continuously
since 1989 in connection with its design, manufacture and sale of jewelry and
jewelry accessories. In Men’s
Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum
Respondent’s <cheridori.com>
domain name is confusingly similar to Complainant’s CHERIE DORI mark. The disputed domain name is composed of
Complainant’s mark without the letter “e,” creating a common misspelling or
typographical error of Complainant’s mark.
By manipulating Complainant’s mark to mimic a misspelling or typo of the
mark in order to misdirect Internet users, Respondent has engaged in
typosquatting. The Panel finds that the
disputed domain name is confusingly similar to Complainant’s mark pursuant to
Policy ¶ 4(a)(i). See Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that
the <neimanmacus.com> domain name was a
simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was
evidence that the domain name was confusingly similar to the mark); see
also State Farm Mut. Auto. Ins. Co. v. Try Harder &
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and
legitimate interests in the <cheridori.com>
domain name. Complainant’s assertion
establishes a prima facie case for purposes of the Policy, shifting the
burden to Respondent to demonstrate that it does have rights or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Respondent had the opportunity to provide the
Panel with evidence or arguments in support of its rights or legitimate
interests by submitting a Response. The
Panel views Respondent’s failure to provide a Response as evidence that
Respondent lacks rights or legitimate interests. However, the Panel will evaluate the
available evidence to determine whether Respondent does have rights or
legitimate interests as contemplated by Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
Respondent is using the <cheridori.com> domain name to redirect Internet users to Respondent’s website featuring links to third-party websites, some of which compete directly with Complainant. Such use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). Respondent is not offering any goods or services on it’s website, as the website is composed entirely of links to third-party websites. Presumably, Respondent is profiting from those links by collecting pay-per-click fees when Internet users follow the links. Thus, the Panel finds that Respondent lacks rights or legitimate interests as outlined in Policy ¶¶ 4(c)(i) and (iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
There is no available evidence that Respondent is commonly
known by the <cheridori.com>
domain name pursuant to Policy ¶ 4(c)(ii).
Respondent’s WHOIS information identifies Respondent as “WhoisGuard,”
which has no apparent relationship to the disputed domain name. Complainant asserts that Respondent is not a
licensee of Complainant, or affiliated with Complainant in any way. The Panel finds that Respondent is not
commonly known by 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 Compagnie de Saint Gobain v.
Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or
legitimate interest where the respondent was not commonly known by the mark and
never applied for a license or permission from the complainant to use the
trademarked name).
The Panel finds further evidence to support Respondent’s
lack of rights and legitimate interests because Respondent is engaged in the
practice of typosquatting. The panel in Nat’l
Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan.
21, 2003), defined typosquatting as “the intentional misspelling of words with
[the] intent to intercept and siphon off traffic from its intended destination,
by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic.” Respondent’s domain name is a common misspelling
of Complainant’s mark intended to misdirect Internet users making common
spelling or typing errors. The Panel
finds that Respondent’s typosquatting supports a finding that Respondent lacks
rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <cheridori.com>
domain name to redirect Internet users to Respondent’s website featuring links
to third-party websites. Many of the
links divert Internet users to websites offering jewelry and jewelry
accessories in direct competition with Complainant. Internet users finding themselves misdirected
to Respondent’s website may follow the links to Complainant’s competitors and
do business with those competitors instead of with Complainant, thus disrupting
Complainant’s business. The Panel finds
that such use is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iii). See S. Exposure v.
S. Exposure, Inc., FA 94864 (Nat. Arb. Forum
Respondent’s <cheridori.com>
domain name is confusingly similar to Complainant’s CHERIE DORI mark. Internet users seeking Complainant’s genuine
website may find themselves redirected to Respondent’s website if they make a
common spelling or typing mistake.
Respondent is capitalizing on this mistake by presumably collecting
pay-per-click fees from the links on its website. The Panel finds that such use is evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Canadian Tire Corp. v. domain adm’r
no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding
the respondent registered and used the domain name in bad faith because the
respondent “created ‘a likelihood of confusion with the complainant’s mark as
to the source, sponsorship, affiliation, or endorsement of the Respondent’s web
site or location’. . . through Respondent’s persistent practice of
‘typosquatting.’”); see also AltaVista
Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under
Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that
offered links to third-party websites that offered services similar to the
complainant’s services and merely took advantage of Internet user mistakes).
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 <cheridori.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: January 24, 2007
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