CompUSA Management Company v. Azra Khan
Claim Number: FA0208000123921
PARTIES
Complainant
is CompUSA Management Company,
Dallas, TX, USA (“Complainant”) represented by Lee Ann Wheelis, of Thompson
& Knight LLP. Respondent is Azra Khan, Rawalpindi, PAKISTAN
(“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <copmusa.com>,
registered with iHoldings.com.
PANEL
The
undersigned certifies that she has acted independently and impartially and to
the best of her knowledge has no known conflict in serving as Panelist in this
proceeding.
Sandra
Franklin as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on August 29, 2002; the Forum received a hard copy of the
Complaint on September 3, 2002.
On
August 29, 2002, iHoldings.com confirmed by e-mail to the Forum that the domain
name <copmusa.com> is
registered with iHoldings.com and that Respondent is the current registrant of
the name. iHoldings.com has verified
that Respondent is bound by the iHoldings.com 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 3, 2002, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of September 23, 2002 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@copmusa.com 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 8, 2002, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the Forum appointed Sandra Franklin 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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
<copmusa.com>
domain name is confusingly similar to Complainant's COMPUSA mark.
Respondent
has no rights or legitimate interests in the disputed domain name.
Respondent registered and used the
disputed domain name in bad faith.
B.
Respondent
Respondent
did not submit a Response.
FINDINGS
Complainant first started using the
COMPUSA mark in commerce in relation to its software and computer related
products in 1991. Complainant first registered the COMPUSA mark with the United
States Patent and Trademark Office in 1992, as Registration Number
1,735,429. Complainant operates
approximately 224 retail stores in 84 major United States metropolitan markets. Complainant also operates a retail Internet
website for sales of computers, software, and video games.
Respondent registered the disputed domain
name on January 17, 2002. Respondent is
using the disputed domain name in order to divert Internet users to a website
that contains links to Internet-based sellers of computers and video games, as
well as links to video-game related periodicals and other advertisements.
DISCUSSION
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 the 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 the 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.
Identical and/or Confusingly Similar
Complainant has established that it has
rights in the COMPUSA mark through registration with the United States Patent
and Trademark Office and continuous use.
Respondent’s <copmusa.com>
domain name is confusingly similar to Complainant’s COMPUSA mark because it
takes advantage of a common spelling error of Internet users. Respondent merely transposes the “p” and the
“m,” thereby ensnaring any Internet user who mistakenly types Respondent’s
domain name into the browser.
Transposed letters in a well-known mark do not create a mark that is
distinct enough to overcome a Policy ¶ 4(a)(i) confusingly similar
analysis. See Google Inc. v. Jon G., FA 106084
(Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly
similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of
two letters does not create a distinct mark capable of overcoming a claim of
confusing similarity, as the result reflects a very probable typographical
error”); see also Geocities
v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the domain
name <geociites.com> is confusingly similar to Complainant’s GEOCITIES
mark).
The Panel finds that Policy ¶ 4(a)(i) has
been satisfied.
Rights or Legitimate Interests
Respondent has failed to come forward
with a Response. Therefore, the Panel
is permitted to make reasonable inferences in favor of Complainant and accept
Complainant’s allegations as true. See Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that Complainant’s allegations are true unless clearly contradicted
by the evidence); 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”).
Furthermore, based on Respondent’s
failure to respond, it is presumed that Respondent lacks all rights and
legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that
Respondent has no rights or legitimate interests in respect of the domain, the
burden shifts to Respondent to provide credible evidence that substantiates its
claim of rights and legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326
(WIPO June 19, 2000) (finding that Respondent has no rights or legitimate
interest in the domain name because Respondent never submitted a Response nor
provided the Panel with evidence to suggest otherwise).
Respondent is using a domain name that is
confusingly similar to Complainant’s mark in order to ensnare Internet users
and direct them to a website that competes with Complainant’s goods and
services. Respondent’s <copmusa.com>
domain name utilizes a common typing error and thereby directs Internet users
who mistype Complainant’s mark in the browser to Respondent’s website. As a result, Internet users looking for
Complainant will be confused as to the source, sponsorship and affiliation of
Respondent’s website. This type of use
is not considered to be in connection with a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i), or a legitimate, noncommercial or fair
use pursuant to Policy ¶ 4(c)(iii). See N. Coast Med., Inc. v. Allegro Med., FA
95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent
used the domain name to divert Internet users to its competing website); see
also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding
that, because Respondent's sole purpose in selecting the domain names was to
cause confusion with Complainant's website and marks, it's use of the names was
not in connection with the offering of goods or services or any other fair
use).
There is no evidence on record, and
Respondent has not come forward with a Response to establish that it is
commonly known as COPMUSA or <copmusa.com>. Therefore, there is no evidence to establish
that Respondent has rights or legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA
96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests
because Respondent is not commonly known by the disputed domain name or using
the domain name in connection with a legitimate or fair use); see also 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).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Registration and Use in Bad Faith
Respondent is engaging in a practice
called typosquatting. Respondent is
diverting Internet users who mistype Complainant’s mark in the browser to
Respondent’s own website for Respondent’s commercial gain. This practice is considered to be evidence
of bad faith use pursuant to Policy ¶ 4(b)(iv). See e.g. Hewlett-Packard
Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding
<hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant); see
also Bama Rags, Inc. v. Zuccarini,
FA 94380 (Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com>
and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to
Complainant).
Furthermore, based on the fact that
Respondent registered a domain name that is a misspelling of Complainant’s mark
it can be inferred that Respondent was on notice of Complainant’s rights in the
COMPUSA mark when it registered the disputed domain name. Registration of a domain name, despite
knowledge of Complainant’s rights, is evidence of bad faith registration
pursuant to Policy ¶ 4(a)(iii). See
Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. Feb.
11, 2002) (finding that "[w]here an alleged infringer chooses a mark he
knows to be similar to another, one can infer an intent to confuse"); see
also Samsonite Corp. v. Colony
Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of
bad faith includes actual or constructive knowledge of a commonly known mark at
the time of registration).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
shall be hereby GRANTED.
Accordingly, it is Ordered that the
domain name <copmusa.com> be
TRANSFERRED from Respondent to Complainant.
Sandra Franklin, Panelist
Dated: October 18, 2002
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