LTD Commodities, LLC v. Domain Park Limited
Claim Number: FA0705000982996
Complainant is LTD Commodities, LLC (“Complainant”), represented by Nora
Preece, of Law Offices of Alter and Preece, 19 S.
LaSalle, Suite 1650, Chicago, IL 60603.
Respondent is Domain Park Limited (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <ltdcommodidties.com>, <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com>, <ltdcommodtiies.com> and <qbcdistributing.com>, registered with Moniker Online Services, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 14, 2007; the National Arbitration Forum received a hard copy of the Complaint on May 16, 2007.
On May 14, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <ltdcommodidties.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the names. On May 17, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com>, <ltdcommodtiies.com> and <qbcdistributing.com> domain names are registered with Moniker Online Services, Inc and that Respondent is the current registrant of the names. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 May 25, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 14, 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@ltdcommodidties.com, postmaster@ltdcomm0dities.com, postmaster@ltfcommodities.com, postmaster@ltdcommoditires.com, postmaster@ltdcommodtiies.com, and postmaster@qbcdistributing.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 20, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <ltdcommodidties.com>, <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com> and <ltdcommodtiies.com> domain names are confusingly similar to Complainant’s LTD COMMODITIES mark, and the <qbcdistributing.com> domain name is confusingly similar to Complainant’s ABC DISTRIBUTING mark.
2. Respondent does not have any rights or legitimate interests in the <ltdcommodidties.com>, <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com>, <ltdcommodtiies.com> and <qbcdistributing.com> domain names.
3. Respondent registered and used the <ltdcommodidties.com>, <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com>, <ltdcommodtiies.com> and <qbcdistributing.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LTD Commodities, LLC, operates online and mail-order catalog distributorships, offering a wide variety of general merchandise and consumer goods. Complainant has been in business since 1963 and currently operates under its LTD COMMODITIES and ABC DISTRIBUTING marks. Complainant conducts its online business through the corresponding websites located at the <ltdcommodities.com> and <abcsdistributing.com> domain names. Complainant holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for both the LTD COMMODITIES mark (Reg. No. 2,409,188 issued November 28, 2000) and the ABC DISTRIBUTING mark (Reg. No. 2,887,254 issued September 21, 2004).
Respondent registered the disputed domain names on the following dates: <ltdcommodidties.com> on March 13, 2007, <ltdcomm0dities.com> on April 10, 2007, <ltfcommodities.com> on April 30, 2007, <ltdcommoditires.com> on October 12, 2006, <ltdcommodtiies.com> on May 4, 2007 and <qbcdistributing.com> on March 13, 2007. Respondent’s domain names resolve to websites displaying links to various third-party websites offering a variety of goods and services both related and unrelated to Complainant’s business. Upon the receipt of a cease and desist letter from Complainant, Respondent offered to sell one of the disputed domain names, <ltdcommodidties.com>, 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.
The Panel finds that Complainant’s registration with the USPTO sufficiently establishes Complainant’s rights in the LTD COMMODITIES and ABC DISTRIBUTING marks for purposes of 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.”).
All of Respondent’s disputed domain names are confusingly similar to the corresponding marks in which Complainant has rights. The disputed domain names either misspell the marks, add terms to the marks, or both. Previous panels have found that common misspellings of a mark or the addition of terms to a mark do not sufficiently differentiate the respondent’s domain names from the complainant’s mark. Moreover, the addition of the generic top-level domain (“gTLD”) “.com” to the disputed domain names is irrelevant as a top-level domain is a required element of all domain names. Therefore, the Panel finds that the <ltdcommodidties.com>, <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com> and <ltdcommodtiies.com> domain names are confusingly similar to Complainant’s LTD COMMODITIES mark and the <qbcdistributing.com> domain name is confusingly similar to Complainant’s ABC DISTRIBUTING mark pursuant to Policy ¶ 4(a)(i). See Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such “generic” typos do not change respondent’s infringement on a core trademark held by the complainant); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that the domain names <beanybaby.com>, <beaniesbabies.com>, <beanybabies.com> are confusingly similar to the complainant’s mark BEANIE BABIES); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights or legitimate interests in the <ltdcommodidties.com>, <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com>, <ltdcommodtiies.com> and <qbcdistributing.com> domain names. However, once Complainant has made a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); 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 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). In this case, Complainant has established a prima facie case 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 disputed domain names. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). However, the Panel will now examine the record to further determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
There is no evidence in the record, including Respondent’s
WHOIS information, to suggest that Respondent is commonly known by any of the <ltdcommodidties.com>, <ltdcomm0dities.com>,
<ltfcommodities.com>, <ltdcommoditires.com>, <ltdcommodtiies.com>
or <qbcdistributing.com> domain names. Accordingly, the Panel finds that Respondent
lacks rights or legitimate interests 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 Ian Schrager Hotels, L.L.C. v.
Taylor, FA 173369 (Nat. Arb. Forum Sept.
25, 2003) (finding that without demonstrable evidence to support the assertion
that a respondent is commonly known by a domain name, the assertion must be
rejected).
Respondent is using the disputed domain names to redirect Internet users to websites displaying links to various third-party websites offering goods and services both related and unrelated to Complainant’s business, including some websites in direct competition with Complainant. The Panel infers that Respondent is benefiting commercially from these links through the accrual of click-through fees. The Panel thus finds that Respondent lacks rights or legitimate interests in the disputed domain names because this is not 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). See Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA 100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate interests in the disputed domain name where the respondent was using the complainant’s mark to redirect Internet users to a website offering credit card services unrelated to those services legitimately offered under the complainant’s mark); see also 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).
Additionally, the Panel finds that Respondent lacks rights and legitimate interests due to the nature of the disputed domain names, as they are all typosquatted versions of Complainant’s marks. In LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003), an earlier case involving the present Complainant, the panel found that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this ‘typosquatting’ was evidence that the respondent lacked rights or legitimate interests in the disputed domain names. See also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain names to divert Internet users to websites that display links to related and unrelated third-party websites, including various websites in direct competition with Complainant’s business. This constitutes disruption of Complainant’s business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
The Panel finds that Respondent is using the disputed domain
names, which are confusingly similar to Complainant’s marks, to earn
click-through fees for diverting customers to various third-party websites. Therefore, Respondent is profiting from the
likelihood that consumers will confuse the disputed domain names with Complainant’s
mark, and this is further evidence of bad faith registration and use under
Policy ¶ 4(b)(iv). See Amazon.com,
Inc. v. Shafir, FA 196119 (Nat. Arb. Forum
Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct
competition with Complainant, and giving the impression of being affiliated
with or sponsored by Complainant, this circumstance qualifies as bad faith
registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”); 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.”).
Additionally, Respondent’s bad faith registration and use of the disputed domain names is evidenced by the typosquatted nature of the disputed domain names. 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 Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is 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 and of itself evidence of bad faith.”).
Finally, upon the receipt of a cease and desist letter from
Complainant, Respondent offered to sell one of the
disputed domain names, <ltdcommodidties.com>,
to Complainant. This is further evidence
that Respondent registered and is using the disputed domain names in bad faith
under Policy ¶ 4(b)(i). See Little Six, Inc. v. Domain For
The Panel thus 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 <ltdcommodidties.com>, <ltdcomm0dities.com>, <ltfcommodities.com>, <ltdcommoditires.com>, <ltdcommodtiies.com> and <qbcdistributing.com> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 29, 2007
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