Amerimark Direct, LLC and its subsidiary Dr. Leonard's Healthcare Corp v. Tulip Trading Company
Claim Number: FA1801001768222
Complainant is Amerimark Direct, LLC and its subsidiary Dr. Leonard's Healthcare Corp (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Tulip Trading Company (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amerimsrk.com> (the Domain Name), registered with Key-Systems GmbH.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 23, 2018; the Forum received payment on January 23, 2018.
On January 23, 2018, Key-Systems GmbH confirmed by e-mail to the Forum that the Domain Name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 20, 2018 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@amerimsrk.com. Also on January 29, 2018, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On February 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 Respondent to Complainant.
A. Complainant
Complainant’s contentions can be summarised as follows:
Amerimark Direct LLC (hereinafter referred to as Complainant) owns the trade mark AMERIMARK in the USA for mail order catalog services registered in 2002. Amerimark.com was launched in 2000.
The Domain Name registered in 2016 is confusingly similar to Complainant’s mark, the comparison being only with the second level part of the Domain Name. It differs only by one character and is a classic case of typosquatting.
Respondent has no rights and legitimate interests in respect of the Domain Name. Respondent has not been commonly known by the Domain Name and is not affiliated with Complainant in any way. Complainant has not given Respondent permission to use Complainant’s mark.
Respondent did not reply to a cease and desist letter.
Respondent is using the Domain Name to redirect Internet users to pay per click links some of which compete with Complainant’s business. This is not a bona fide offering of goods and services or a legitimate non commercial or fair use. This is bad faith pursuant to Policy 4 (b)(iv) by using the Domain Name to attract and mislead consumers for its own profit. This also disrupts Complainant’s competing business under Policy 4 (b)(iii).
Typosquatting in itself is bad faith registration and use. Respondent has been subject to other adverse rulings under the Policy and has some other domain name registrations containing well known marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade mark AMERIMARK in the USA for mail order catalog services registered in 2002. Amerimark.com was launched in 2000.
The Domain Name registered in 2016 has been directed to pay per click links for competing businesses offering competing products 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."
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.
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(f), 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 (Forum July 31, 2000) (holding that 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.”).
Identical or Confusingly Similar
The Domain Name consists of a misspelled version of Complainant's AMERIMARK mark (which is registered in USA since 2002 for online catalogue services) and the gTLD .com. The Panel agrees that misspellings such as substitution of a letter does not distinguish the Domain Name from Complainant's AMERIMARK trade mark pursuant to the Policy. See Coachella Music Festival LLC v Domain Administrator/China Capital Investment Limited, FA 1734230 (Forum Jul 17, 2017).
The gTLD .com does not serve to distinguish the Domain Name from Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the AMERIMARK mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
It is clear from the evidence that Respondent has used the pages attached to the domain name to link to businesses competing with Complainant through pay per click links. The usage of Complainant’s mark which has a significant reputation in relation to similar services selling products not connected with Complainants is not fair as the pages attached to the Domain Name do not make it clear that there is no commercial connection with Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Further the Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype Complainant’s mark and be taken to Respondent’s site is registration and use in bad faith).
Respondent is using the Domain Name to point to pay per click links to make profit from promoting services not associated with Complainant in a disruptive manner. See Health Republic Insurance Company v above.com Legal, FA 1506001622068 (Forum July 10, 2015) (‘The use of a domain name’s resolving web site to host links to competitors of a complainant shows intent to disrupt that Complainant’s business thereby showing bad faith in use and registration under Policy 4 (b)(iii).’) Additionally the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site under Policy 4 (b)(iv). See also Capital One Financial Corp v DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum Jun, 4, 2015).
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and 4 (b)(iv) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amerimsrk.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 27, 2018
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