Merrick Pet Care, Inc. v. Comdot Internet Services Private Limited
Claim Number: FA0803001156059
Complainant is Merrick Pet Care, Inc. (“Complainant”), represented by Bruce
Moseley, of Law Office of Chris Stewart, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwmerrickpetcare.com>, registered with Lead Networks Domains Pvt. Ltd.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 3, 2008; the National Arbitration Forum received a hard copy of the Complaint on March 5, 2008.
On March 19, 2008, Lead Networks Domains Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <wwwmerrickpetcare.com> domain name is registered with Lead Networks Domains Pvt. Ltd. and that Respondent is the current registrant of the name. Lead Networks Domains Pvt. Ltd. has verified that Respondent is bound by the Lead Networks Domains Pvt. Ltd. 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 March 25, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 14, 2008 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@wwwmerrickpetcare.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 21, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <wwwmerrickpetcare.com> domain name is confusingly similar to Complainant’s MERRICKPETCARE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <wwwmerrickpetcare.com> domain name.
3. Respondent registered and used the <wwwmerrickpetcare.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Merrick Pet Care, Inc., sells pet food and pet
treats through the <merrickpetcare.com> domain name. Complainant’s domain
name was registered and has been in use since 2001. Complainant holds a trademark registration
for the
Respondent registered the disputed domain name on December 21, 2006. The <wwwmerrickpetcare.com> domain name currently resolves to a third-party links page in direct competition with 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 established rights in the MERRICKPETCARE.COM mark upon filing that application with the USPTO as Complainant’s application was subsequently granted. The Panel finds this registration satisfies Policy ¶ 4(a)(i). See Phoenix Mortgage Corp. v. Toggas, D2001-0101 (WIPO Mar. 30, 2001) (“The effective date of Complainant's federal rights is . . . the filing date of its issued registration.); see also Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date).
The disputed domain name contains Complainant’s mark in its
entirety with the addition of the prefix “www.”
The Panel finds that Complainant’s mark is the distinctive feature of
the disputed domain name, and therefore is confusingly similar under Policy ¶
4(a)(i). See Dana Corp. v. $$$ This
Domain Name Is For
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant must initially make out
a prima facie case that Respondent
has no rights or legitimate interests in the domain name at issue. See
VeriSign Inc. Vene Sign,
Respondent has failed to submit a response to the Complaint. The Panel may presume that Respondent has no rights or legitimate interests in the <wwwmerrickpetcare.com> domain name, but will still consider all available evidence with respect to the factors listed in Policy ¶ 4(c) before making its final determination. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“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).”); see also 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.”).
Nowhere in Respondent’s WHOIS information does it indicate that Respondent is commonly known by the <wwwmerrickpetcare.com> domain name. There is also no other information in the record to indicate that Respondent is or ever has been known by the disputed domain name. Further, Respondent has not sought, nor has Complainant granted, a license or permission to use Complainant’s mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed 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 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 disputed domain name resolves to website containing competing third-party links in direct competition with Complainant. The Panel finds that this is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names pursuant to Policy ¶ 4(c)(iii). See Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”).
By failing to respond, Respondent leaves the Panel to
presume that the disputed domain name is an attempt at typosquatting
Complainant’s mark. Such a use does not
demonstrate rights or legitimate interests under
Policy ¶ 4(a)(ii). See RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat.
Arb. Forum Feb. 25, 2003) (finding that the respondent has no rights or
legitimate interests in the <wwwremax.com> domain name as it is merely
using the complainant’s mark to earn profit from pop-up advertisements); see also Black & Decker Corp. v. Khan, FA 137223 (Nat.
Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the
respondent used the typosquatted <wwwdewalt.com> domain name to divert
Internet users to a search engine webpage, and failed to respond to the
complaint)
The Panels concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The <wwwmerrickpetcare.com> domain name is confusingly similar to Complainant’s mark and resolves to a third-party links page in direct competition with Complainant. The Panel assumes that such a website must generate revenue for Respondent. Consequently, the Panel finds further evidence of Respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant).
The Panel finds that Respondent’s use of the <wwwmerrickpetcare.com>
domain name to commercially gain by advertising links to competing services
constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Complainant contends that Respondent is using the <wwwmerrickpetcare.com>
domain name for commercial gain by advertising links to competing services, and
benefiting from the likely confusion between Complainant’s mark and the
disputed domain name. The Panel finds
that the similarity between the disputed domain name and Complainant’s mark are
likely to create confusion as to Complainant’s source, sponsorship,
affiliation, or endorsement of the website that resolves from the disputed
domain name under Policy ¶ 4(b)(iv). See 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); see also
Additionally, the Panel finds that
the addition of “www” before Complainant’s mark is an example of typosquatting,
as well as a showing of bad faith registration and use under Policy ¶
4(a)(iii). See Medline,
Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“In typosquatting cases, such as this one, it
would be difficult for Respondent to prove to the Panel that it did not have
actual knowledge of Complainant’s distinctive MEDLINE mark when it registered
the infringing [<wwwmedline.com>] domain name.”); 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.”).
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 <wwwmerrickpetcare.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: May 2, 2008
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