Complainant is The Neiman-Marcus Group, Inc., Dallas, TX ("Complainant") represented by David J. Steele, of Christie, Parker & Hale LLP. Respondent is Tumay Asena, Ankara, TURKEY ("Respondent").

The domain name at issue is <niemanmarcus.com>, registered with Dotregistrar.

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.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 17, 2001; the Forum received a hard copy of the Complaint on September 17, 2001.

On September 25, 2001, Dotregistrar confirmed by e-mail to the Forum that the domain name <niemanmarcus.com> is registered with Dotregistrar and that Respondent is the current registrant of the name. Dotregistrar has verified that Respondent is bound by the Dotregistrar 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 September 26, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 16, 2001 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@niemanmarcus.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On October 23, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 the Respondent to the Complainant.

A. Complainant

The <niemanmarcus.com> domain name is confusingly similar to Complainant’s NEIMAN-MARCUS mark.

Respondent has no rights or legitimate interests in respect to <niemanmarcus.com>.

Repondent registered <niemanmarcus.com> in bad faith.

B. Respondent

No Response was received.

Complainant’s Neiman Marcus retail chain has become internationally recognized as an innovator of high fashion and famous designers with 31 stores throughout the world. Complainant owns several U.S. patents for NEIMAN-MARCUS, and has been the exclusive user of the mark since 1907.

Complainant has also launched a website at <neimanmarcus.com> from which it advertises and obtains orders for its merchandise.

Respondent registered <niemanmarcus.com> on April 18, 2000. Respondent uses the domain name to redirect users to to the <qksrv.net> website, which in turn, immediately connects users to the auction Internet site <e-bay.com>. Respondent received compensation from the owners of the <qksrv.net> domain name who in turn received compensation from E-Bay.

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

Respondent’s <niemanmarcus.com> domain name is confusingly similar to Complainant’s NEIMAN-MARCUS mark. The removal of a hyphen and a common misspelling is not enough to properly distinguish Respondent’s domain name from Complainant’s mark. See Ritz-Carlton Hotel Co. v. Club Car Executive, D2000-0611 (WIPO Sept. 18, 2000) (finding that removing a hyphen in the domain names is not sufficient to differentiate the domain names from the mark); see also Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to Complainant’s HEWLETT-PACKARD mark); see also Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark "Bank of America" because 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").

The Panel finds that Policy 4(a)(i) has been satisfied.

Respondent does not have any rights or legitimate interests in <niemanmarcus.com> because it does not use it for a bona fide offering of goods. Using a domain name confusingly similar to a famous mark for the purpose of diverting Complainant’s potential customers to another website for profit is not a bona fide offering of goods. See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).

Respondent does not have any rights or legitimate interests in <niemanmarcus.com> because Respondent was not commonly known by the name. See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

Respondent does not have any rights or legitimate interests in <niemanmarcus.com> because Respondent’s use of a misspelling of the Complainant’s mark to divert Internet users to a third party website for profit is not a fair use of the domain name at issue. See Encyclopaedia Brittanica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark); see also AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding that use of the domain name to direct users to other, unconnected websites does not constitute a legitimate interest in the domain name).

The Panel finds that Policy 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent’s use of this domain name which capitalizes on a common typo of Complainant’s famous mark is called "typosquatting". This practice of "typosquatting" has been recognized as a bad faith use of a domain name under the UDRP. See, e.g., AltaVista Co. v. Stoneybrook, D2000-0886 (WIPO Oct. 26, 2000) (awarding <www.alavista.com>, among other misspellings of altavista.com, to Complainant); see also Dow Jones & Co., Inc. and Dow Jones, L.P. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (awarding domain names <wwwdowjones.com>, <wwwwsj.com>, <wwwbarrons.com> and <wwwbarronsmag.com> to Complainants).

Further, Respondent’s use of a domain name confusingly similar to the obviously famous NEIMAN-MARCUS mark is evidence of bad faith. See Am. Online Inc. v. Shenzhen JZT Computer Software Co. Ltd, D2000-0809 (WIPO Sept. 6, 2000) (finding that <gameicq.com> and <gameicq.net> are obviously connected with services provided with the world-wide business of ICQ and the very use by someone with no connection with the product suggests opportunistic bad faith); see also Ty Inc. v. Parvin, D2000-0688 (WIPO Nov. 9, 2000) (finding that Respondent’s registration and use of an identical and/or confusingly similar domain name was in bad faith where Complainant’s BEANIE BABIES mark was famous and thus Respondent should have been aware of it).

Having established all three elements required under the ICANN policy, the Panel

concludes that the requested relief shall be hereby granted.

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