Cabela's, Inc. v. Jasper Developments Pty Ltd c/o domain manager
Claim Number: FA0908001278819
Complainant is Cabela's,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <cabelus.com> and <calelas.com>, registered with Moniker.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 11, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 12, 2009.
On August 17, 2009, Moniker confirmed by e-mail to the National Arbitration Forum that the <cabelus.com> and <calelas.com> domain names are registered with Moniker and that Respondent is the current registrant of the names. Moniker has verified that Respondent is bound by the Moniker 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 August 18, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 8, 2009 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@cabelus.com and postmaster@calelas.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 15, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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." 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cabelus.com> and <calelas.com> domain names are confusingly similar to Complainant’s CABELA’S mark.
2. Respondent does not have any rights or legitimate interests in the <cabelus.com> and <calelas.com> domain names.
3. Respondent registered and used the <cabelus.com> and <calelas.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cabela’s Inc., is a retailer that provides goods and services for many outdoor activities, including archery, fly-fishing, and boating. Complainant distributes mail-order catalogs to more than 125 countries, and has operated its business since 1961. Complainant also operates its business through the <cabelas.com> domain name. Complainant has registered its CABELA’S mark with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 1,151,981 issued April 21, 1981).
Respondent, Jasper Developments Pty Ltd c/o domain manager, registered the disputed <cabelus.com> and <calelas.com> domain names
on November 2, 2001 and January 19, 2003.
The disputed domain names resolve to websites that display links and
advertisements for Complainant’s direct competitors in the outdoor recreation
industry.
Respondent has been the respondent in other UDRP proceedings
in which the disputed domain names were transferred from Respondent to the
respective complainants in those cases. See, e.g., Troi Torain v. Jasper Developments Pty Ltd, FA 653324 (Nat. Arb.
Forum Apr. 18, 2006); see also Centura
Health Corp. v. Jasper Developments Pty Ltd, FA 751616 (Nat. Arb. Forum Aug.
24, 2006).
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.
The Panel finds that Complainant has set forth sufficient
evidence of its rights in the CABELA’S mark through its registration of the
mark with the USPTO pursuant to Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr.
26, 2006) (finding that the complainant had established rights in the PENTIUM,
CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Miller Brewing
The disputed <cabelus.com> and <calelas.com> domain names
each contain Complainant’s CABELA’S mark while omitting the apostrophe from the
mark, adding the generic top-level domain “.com,” and substituting a letter in
the mark. The Panel finds that none of
these changes thwart a finding of confusing similarity under Policy ¶ 4(a)(i). See Trip Network Inc. v.
Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that
the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see
also LOreal USA Creative Inc v.
Syncopate.com – Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec.
8, 2003) (finding that the omission of an apostrophe did not significantly
distinguish the domain name from the mark); see
also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has set forth a prima facie case supporting its allegations, as it has in this case, the burden shifts to Respondent to prove that is does have rights or legitimate interests pursuant to 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 Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of [UDRP] paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
Respondent has not submitted any evidence indicating that it is commonly known by the disputed domain names. Moreover, the WHOIS domain name registration information merely lists as Respondent “Jasper Developments Pty Ltd c/o domain manager.” Finally, there is no evidence that Respondent ever obtained authorization to use Complainant’s mark in a domain name. Therefore, the Panel finds that Respondent lacks rights and legitimate interests 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 the 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 Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Complainant asserts that Respondent
is using the disputed domain names to resolve to websites that display
competitive click-through links for the outdoor recreation industry. The Panel infers that Respondent obtains
referral fees in this venture, and therefore finds that Respondent has failed
to create 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). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb.
Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet
users seeking Complainant’s website to a website of Respondent and for
Respondent’s benefit is not a bona fide offering of goods or services under
Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum
Mar. 27, 2007) (holding that the operation of a pay-per-click website at a
confusingly similar domain name was not 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)).
Moreover, each of the disputed domain
names contains a misspelled version of Complainant’s CABELA’S mark. Complainant has alleged that this constitutes
“typosquatting,” which is defined as the purposeful registration of domain
names that maximize the potential of Internet users’ common typographical
errors. The Panel finds that Respondent
has engaged in typosquatting, and therefore finds that Respondent lacks rights
and legitimate interests under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent in other UDRP proceedings
in which the disputed domain names were transferred from Respondent to the
respective complainants in those cases. See, e.g., Troi Torain v. Jasper Developments Pty Ltd, FA 653324 (Nat. Arb.
Forum Apr. 18, 2006); see also Centura Health
Corp. v. Jasper Developments Pty Ltd, FA 751616 (Nat. Arb. Forum Aug. 24,
2006). The Panel finds that this
constitutes a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v.
The Panel finds that Respondent’s use of the corresponding
websites and disputed domain names to host competitive third-party
advertisements constitutes a disruption of Complainant’s business, and
therefore evidences Respondent’s bad faith registration and use under Policy ¶
4(b)(iii). See Mission KwaSizabantu v. Rost,
D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition
to another and the context does not imply or demand any restricted meaning such
as commercial or business competitor”); see
also DatingDirect.com Ltd. v. Aston,
FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is
appropriating Complainant’s mark to divert Complainant’s customers to
Respondent’s competing business. The
Panel finds this diversion is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iii).”).
Complainant claims that Respondent has created a likelihood
of confusion as to Complainant’s association with, or sponsorship of, the
disputed domain names for commercial gain due to the confusingly similar nature
of the disputed domain names and corresponding websites. The Panel agrees, and finds that Respondent
has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See
Allianz of Am. Corp. v. Bond,
FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith
registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting
Internet users searching for the complainant to its own website and likely
profiting); see also Asbury Auto. Group, Inc. v.
Finally, the Panel finds that Respondent’s engagement in
typosquatting constitutes additional evidence of bad faith registration and use
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)); see also Nextel Commc’ns
Inc. v. Geer, FA 477183 (Nat.
Arb. Forum July 15, 2005) (finding that the respondent’s registration and use
of the <nextell.com> domain name was in bad faith because the domain name
epitomized typosquatting in its purest form).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <cabelus.com> and <calelas.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: September 29, 2009
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