J.R. Simplot Company v. Emma Dickson / utterrnost
Claim Number: FA2301002028916
Complainant is J.R. Simplot Company (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, USA. Respondent is Emma Dickson / utterrnost (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <simpl0t.com>, (‘the Domain Name’) registered with NameCheap, Inc..
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 Forum electronically on January 24, 2023; Forum received payment on January 24, 2023.
On January 25, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <simpl0t.com> Domain Name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 25, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 14, 2023 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@simpl0t.com. Also on January 25, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On February 16, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the mark SIMPLOT registered, inter alia, in USA for food and related services with first use recorded as 1928. It owns simplot.com.
The Domain Name registered in 2023 is confusingly similar to the Complainant’s mark merely substituting a letter ‘o’ with the number zero and adding the gTLD .com none of which prevents said confusing similarity.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name is a typosquatting registration that has been pointed to links to third party web commercial web sites so there is no bona fide offering of goods or services or legitimate non commercial or fair use, but registration in opportunistic bad faith causing confusion for commercial gain and disrupting the Complainant’s business. Since the Domain Name has been set up for e mail the Complainant is also concerned about possible phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark SIMPLOT registered, inter alia, in USA for food and related services with first use recorded as 1928. It owns simplot.com.
The Domain Name registered in 2023 has been pointed to third party commercial pay per click links.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of a misspelled version of the Complainant's SIMPLOT mark (which is registered in USA for food and related services with first use recorded as 1928) and the gTLD .com.
The Panel agrees that misspellings such as the substitution of a letter ‘o’ with the number zero does not prevent confusing similarity between the Domain Name and the Complainant's 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 the 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 the 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 mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of a sign confusingly similar to its mark. There is no evidence to suggest the Respondent is 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 the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial and so cannot be legitimate non commercial fair use.
Use for pay per click links does not constitute a bona fide offering of goods or services or a legitimate non commercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of .. domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Domain Name also appears to be a typosquatting registration differing from the Complainant’s url by one letter, an extra letter ‘d’. Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015).
The Respondent has not answered this Complaint or put forward any evidence to counteract the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
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 and disruption of the Complainant’s business. 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 the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Use for pay per click links also indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or products and services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links.
As such, the Panel holds that the 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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <simpl0t.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 16, 2023
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