Chantecaille Beaute, Inc. and Parfum de Chantecaille, Inc. v. Registrant
Claim Number: FA0704000964325
Complainants are Chantecaille Beaute, Inc. and Parfum de Chantecaille, Inc. (collectively “Complainant”), represented by Lawrence A. Hoffman, of Ostrolenk, Faber, Gerb & Soffen, LLP, 1180 Avenue of the Americas, New York, NY 10036-8403, USA. Respondent is Registrant (“Respondent”), Registrant, POBOX71826KCPO, na,na HK.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <chantecaile.com>, registered with Onlinenic, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 18, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 20, 2007.
On April 19, 2007, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <chantecaile.com> domain name is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name. Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, 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 April 26, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 16, 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@chantecaile.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <chantecaile.com> domain name is confusingly similar to Complainant’s CHANTECAILLE mark.
2. Respondent does not have any rights or legitimate interests in the <chantecaile.com> domain name.
3. Respondent registered and used the <chantecaile.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Chantecaille
Beaute, Inc. and Parfum de Chantecaille, Inc., are commonly owned and operated companies in New
Jersey. Complainant holds a trademark
registration with the United States Patent and Trademark Office (“USPTO”) for
the CHANTECAILLE mark (Reg. No. 2,408,199 issued on November 28, 2000). Complainant has also registered the
CHANTECAILLE mark in several other countries, including the European Community
(Reg. No. 2,162,972 issued October 14, 2002), Hong Kong (Reg. No. 300,112,698
issued November 18, 2003), and Korea (Reg. No. 40-2003-0003875 issued July 16,
2004). Complainant has used the
CHANTECAILLE mark in connection with the sale of cosmetic goods, including
makeup, perfume and skin care products from its own proprietary formulas. Complainant has registered and is using the
<chantecaille.com> domain name which it uses in connection with the sale
of its goods and products.
Respondent registered the <chantecaile.com> domain name on July 18, 2005. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website displaying links to third-party websites offering goods and services in competition with Complainant’s goods and services under the CHANTECAILLE mark.
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 has established rights in the CHANTECAILLE mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO and through registration in other countries. 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <chantecaile.com> domain name is confusingly similar to Complainant’s mark because Respondent’s domain name merely misspells Complainant’s mark by omitting the second “l” from the mark, a common mistake made by Internet users attempting to enter Complainant’s <chantecaille.com> domain name into their web browser. The Panel finds that this misspelling does not sufficiently alter the mark to negate the confusingly similar aspects of Respondent’s domain name under Policy ¶ 4(a)(i). See Victoria's Secret v. Internet Inv. Firm Trust, FA 94344 (Nat. Arb. Forum May 9, 2000) (finding the domain name <victoriasecret.com> to be confusingly similar to the complainant’s trademark, VICTORIA’S SECRET); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding that <davemathewsband.com> is a common misspelling of the DAVE MATTHEWS BAND mark and therefore confusingly similar).
Respondent has merely added the generic top-level domain (“gTLD”) “.com” to Complainant’s CHANTECAILLE mark, irrelevant to the determination of whether a domain name is confusingly similar under Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); 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.
Complainant has alleged that Respondent does not have rights
or legitimate interests in the <chantecaile.com>
domain name. Complainant’s allegation
establishes a prima facie case which shifts the burden to Respondent to
prove that it does have rights or legitimate interests in the disputed domain
name under Policy ¶ 4(a)(ii). See Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding
that once the complainant asserts that the respondent has no rights or
legitimate interests with respect to the domain, the burden shifts to the
respondent to provide “concrete evidence that it has rights to or legitimate
interests in the domain name at issue”); see also G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum
The Panel assumes Respondent has no rights or legitimate interests here because Respondent has failed to respond to the Complaint. See 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.”); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name). However, the Panel will review all available evidence before determining whether the Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant alleges that Respondent is using the <chantecaile.com> domain name to
redirect Internet users to Respondent’s website displaying links to websites in
direct competition with Complainant under the CHANTECAILLE mark. Respondent’s use of the disputed domain name
to display competing third-party websites is not a use in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See 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); see
also Computer Doctor Franchise Sys.,
Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum
Furthermore, Respondent has offered no evidence and there is
no evidence present in the record to indicate that Respondent is commonly known
by the <chantecaile.com>
domain name. Respondent’s WHOIS
information identifies Respondent as “Registrant.” Therefore, Respondent has failed to establish
rights or legitimate interests in the <chantecaile.com>
domain name under Policy ¶ 4(c)(ii). See
Wells Fargo & Co. v. Onlyne Corp. Services11,
Inc., FA 198969 (Nat. Arb. Forum Nov. 17,
2003) (“Given the WHOIS contact information for the disputed domain [name], one
can infer that Respondent, Onlyne Corporate Services11, is not commonly known
by the name ‘welsfargo’ in any derivation.”); see also Gallup, Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum
Finally, Respondent’s use of the <chantecaile.com> domain name takes advantage of a common
misspelling of Complainant’s CHANTECAILLE mark likely to occur when an Internet
user types in Complainant’s CHANTECAILLE mark.
Such use by Respondent is
evidence in itself that Respondent lacks rights or legitimate interests in the
disputed domain name. See Encyclopaedia Britannica, Inc. v. Zuccarini,
D2000-0330 (WIPO
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <chantecaile.com> domain name, which
is confusingly similar to Complainant’s CHANTECAILLE mark, in order to redirect
Internet users to Respondent’s website displaying links to Complainant’s competitors. The Panel finds that such use constitutes
disruption and is evidence of bad faith registration and use pursuant to Policy
¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368
(WIPO
Respondent is using the <chantecaile.com> domain name to take advantage of those Internet users who misspell Complainant’s mark by redirecting them to Respondent’s own website. The Panel finds that such use constitutes typosquatting, which is evidence itself of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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.”); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith).
Respondent is using the <chantecaile.com>
domain name to redirect Internet users to Respondent’s website displaying links
to competing goods and services for the assumed profit of Respondent. The Panel finds that because Respondent’s
domain name is confusingly similar to Complainant’s CHANTECAILLE mark, Internet
users may become confused as to Complainant’s affiliation with the
website. Presumably, Respondent is
benefiting from this confusion through click-through fees. As such, Respondent’s use of the <chantecaile.com> domain name to
display links to competing goods and services constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Associated
Newspapers Ltd. v. Domain Manager, FA
201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the
<mailonsunday.com> domain name is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's
competitors and Respondent presumably commercially benefited from the
misleading domain name by receiving ‘click-through-fees.’”); see also
TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although
Complainant’s principal website is <century21.com>, many Internet users
are likely to use search engines to find Complainant’s website, only to be
mislead to Respondent’s website at the <century21realty.biz> domain name,
which features links for competing real estate websites. Therefore, it is likely that Internet users
seeking Complainant’s website, but who end up at Respondent’s website, will be
confused as to the source, sponsorship, affiliation or endorsement of
Respondent’s website.”)
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 <chantecaile.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated:
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