Campmor, Inc. v. GearPro.com
Claim Number: FA0309000197972
Complainant is Campmor, Inc., Upper Saddle River, NJ (“Complainant”) represented by Timothy W. Blakely, of Brann & Isaacson, 184 Main Street, PO Box 3070, Lewiston, ME. Respondent is GearPro.com, 800 East Reelfoot Ave., Union City, TN 38261 (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <campmore.com>, registered with Network Solutions, Inc.
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 (the "Forum") electronically on September 23, 2003; the Forum received a hard copy of the Complaint on September 26, 2003.
On September 26, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <campmore.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 September 26, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 16, 2003 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 firstname.lastname@example.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On October 28, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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." 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 makes the following assertions:
1. Respondent’s <campmore.com> domain name is confusingly similar to Complainant’s CAMPMOR mark.
2. Respondent does not have any rights or legitimate interests in the <campmore.com> domain name.
3. Respondent registered and used the <campmore.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds three federal trademarks relating to its sporting goods and outdoor products company. For example, on May 2, 1995, Complainant registered the mark, CAMPMOR (Reg. No. 1892208), with the United States Patent and Trademark Office. Campmor has continually used the CAMPMOR mark in commerce since 1983. Additionally, Campmor conducts business through its own website located at <campmor.com>.
In early 1998, Complainant became aware of the fact that the domain name <campmore.com> had been registered by a Casey Smith, then working for a competitor of Complainant, The Outdoor Experience, which also dealt in goods relating to outdoor activities. Casey Smith remained the administrative contact for the disputed domain name when it was updated on September 18, 2002, but the registrant company name had been changed from The Outdoor Experience to GearPro.com. In 2002, Complainant became aware of the fact that the website attached to the domain name contained the following message: “This domain name is for sale or lease. Please submit reasonable offers here.” “Here” served as a hyperlink permitting offers to be submitted via email. On December 3, 2002, Complainant requested a purchase price for the registration of the domain name from Respondent. Respondent replied with a list price for the domain name of $10,600. Complainant refused the offer.
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.
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 demonstrated rights in the CAMPMOR mark through registration with the United States Patent and Trademark Office and continuous use in commerce since 1983.
In this case, the domain name <campmore.com> incorporates the entire CAMPMOR mark and simply adds an “e” to the end of the mark, resulting in a probable misspelling of the mark. It is established that a domain name is confusingly similar to a registered mark if the name differs only slightly or includes a mere misspelling of a registered mark in which the Complainant has rights. See Kostritzer Schwarzierbrauerei v. Macros-Telekom Corp., D2001-0936 (WIPO, Dec. 18, 2001) (finding domain name <koestritzer.com> confusingly similar to KOSTRITZER mark because it only added an “e” to the mark); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to Complainant’s STATE FARM mark).
Moreover, the domain name <campmore.com> is phonetically identical to Complainant’s mark CAMPMOR. It has been established that the identical nature of a domain name’s pronunciation with a registered mark is sufficient to satisfy ¶ 4(a)(i). See Hewlett-Packard Co. v. Cupcake City, FA 93562 (Nat. Arb. Forum Apr. 7, 2000) (finding that a domain name which is phonetically identical to Complainant’s mark satisfies ¶ 4(a)(i) of the Policy); see also YAHOO! Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain name <yawho.com> is confusingly similar to Complainant’s YAHOO mark).
Therefore, Complainant has shown the domain name <campmore.com> to be confusingly similar to Respondent’s mark CAMPMOR, conforming to Policy ¶ 4(a)(i).
Complainant has asserted that Respondent lacks rights or legitimate interests in the domain name <campmore.com>. Therefore, this Panel is free to infer that Respondent lacks rights or legitimate interests because Respondent has failed to respond to the Complaint. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertion in this regard”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint).
No evidence exists in the record to show that Respondent was commonly known by <campmore.com>, pursuant to Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
Furthermore, Respondent is currently using the disputed domain to host a hyperlink permitting resale offers to be submitted via e-mail. Respondent also attempted to sell the domain name registration to Complainant for $10,600. Thus, the attempted sale of a domain name registration, which is confusingly similar to that of Complainant’s registered mark, is evidence of the lack of rights or legitimate interests. See Am. Nat’l Red Cross v. Domains a/k/a Best Domains a/k/a John Barry, FA 143684 (Nat. Arb. Forum, Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark”); see also Nat’l Press Club v. High Traffic Domains, Inc., FA154113 (Nat. Arb. Forum, June 2, 2003) (“Respondent’s current use of the domain name, purporting to offer the registration for sale, does not evidence a legitimate noncommercial or fair use of the domain name”).
Therefore, Complainant has shown Respondent to be without rights or legitimate interests conforming to Policy ¶ 4(a)(ii).
Respondent registered the disputed domain name and offered to sell it to Complainant for $10,600. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Matmut v. Tweed, D2000-1183 (WIPO Nov. 27, 2000) (finding bad faith under Policy paragraph 4(b)(i) where Respondent stated in communication with Complainant, “if you are interested in buying this domain name, we would be ready to sell it for $10,000”); see also Grundfos A/S v. Lokale, D2000-1347 (WIPO Nov. 27, 2000) (finding that a failure to use the domain name in any context other than to offer it for sale to Complainant amounts to a use of the domain name in bad faith); see also World Wrestling Fed’n Entmt., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs).
Furthermore, it appears Respondent is a competitor of Complainant. Registration and use of the domain name under the circumstances demonstrates bad faith under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from Complainant's marks suggests that Respondent, Complainant’s competitor, registered the names primarily for the purpose of disrupting Complainant's business).
Therefore, Complainant has shown Respondent to have registered and used the domain name in bad faith conforming to Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <campmore.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 5, 2003
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page