Vera Bradley, Inc. DBA Vera Bradley Designs, Inc. v Dollie Mork
Claim Number: FA1410001584364
Complainant is Vera Bradley, Inc. DBA Vera Bradley Designs, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Dollie Mork (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <verabradlry.com>, registered with Key-Systems GmbH.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 10, 2014; the National Arbitration Forum received payment on October 10, 2014.
On October 14, 2014, Key-Systems GmbH confirmed by e-mail to the National Arbitration Forum that the <verabradlry.com> 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 October 14, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 3, 2014 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@verabradlry.com. Also on October 14, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 11, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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" 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 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
Complainant owns the VERA BRADLEY mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1745799, registered January 12, 1993). Complainant uses the VERA BRADLEY mark in connection with its business as a designer of accessories for women. Complainant operates online through the <verabradley.com> domain name.
The <verabradlry.com> domain name is confusingly similar to Complainant’s VERA BRADLEY mark Policy ¶ 4(a)(i) under because Respondent has simply substituted the letter “e” for the letter “r” in the mark.
Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Respondent is not commonly known by the <verabradlry.com> domain name. Respondent is neither licensed nor authorized to use the VERA BRADLEY mark. Respondent does not provide any bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name to resolve to a website that contains links to third-party websites, some of which directly compete with Complainant.
Respondent registered and uses the <verabradlry.com> domain name in bad faith under Policy ¶ 4(a)(iii). Respondent has listed the disputed domain name for sale. Respondent uses the disputed domain name to display links to third-party websites, some of which compete with Complainant. Respondent uses the disputed domain name to divert Internet users to its own website for commercial gain. Respondent’s typosquatting behavior is further evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Vera Bradley, Inc. DBA Vera Bradley Designs, Inc., owns the VERA BRADLEY mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1745799, registered January 12, 1993). Complainant uses the VERA BRADLEY mark in connection with its business as a designer of accessories for women.
Respondent, Dollie Mork, registered the <verabradlry.com> domain name on September 28, 2009. Respondent uses the disputed domain name to resolve to a website that contains links to third-party websites, some of which directly compete 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."
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(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.”).
Complainant has rights in the VERA BRADLEY mark under Policy ¶ 4(a)(i) through trademark registrations with the USPTO (e.g. Reg. No. 1745799, registered January 12, 1993). Such registrations are sufficient to establish rights in the VERA BRADLEY mark, even though Respondent resides in Germany. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <verabradlry.com> domain name is confusingly similar to Complainant’s VERA BRADLEY mark because Respondent has simply substituted the letter “r” for the “e” in the mark. The disputed domain name also differs from the mark given the affixation of the generic top-level domain (“gTLD”) “.com” and the omission of the space between the two words of the mark.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the <verabradlry.com> domain name under Policy ¶ 4(c)(ii). The WHOIS information identifies “Dollie Mork” as the registrant of the disputed domain name. Further, Respondent is neither licensed nor authorized to use the VERA BRADLEY mark. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name to redirect Internet users to its own website that contains a variety of links to third-party websites, some of which directly compete with Complainant. See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). Respondent has placed a general offer to sell the disputed domain name. Respondent’s general offer to sell the disputed domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(i). See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).
Respondent uses the disputed domain name to redirect confused Internet users to its own website that contains a variety of different links to third-party websites, some of which compete directly with Complainant. Presumably Respondent receives pay-per-click fees from these links. Respondent’s actions disrupt Complainant’s business and are evidence of bad faith pursuant to Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent’s actions are also evidence of bad faith 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).
Respondent’s behavior constitutes typosquatting. Typosquatting is meant to take advantage of typographical errors, and is thus motivated by bad faith under Policy ¶ 4(a)(iii).. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <verabradlry.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 25, 2014
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