Vision Direct, Inc. v. Unk Nown c/o Unknown
Claim Number: FA0909001286102
Complainant is Vision
Direct, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain name at issue are <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>,
<visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>,
<visionirect.com>, and <visoindirect.com>,
registered with Internet.bs Corp.
.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 24, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 25, 2009.
On September 28, 2009, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names are registered with Internet.bs Corp. and that Respondent is the current registrant of the names. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 October 1, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 21, 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@vidsiondirect.com, postmaster@viosiondirect.com, postmaster@visinodirect.com, postmaster@visiomdirect.com, postmaster@visiondierct.com, postmaster@visiondiretc.com, postmaster@visionirect.com, and postmaster@visoindirect.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 27, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names are confusingly similar to Complainant’s VISION DIRECT mark.
2. Respondent does not have any rights or legitimate interests in the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names.
3. Respondent registered and used the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vision Direct, Inc., is an online retail corporation which markets and sells contact lens and contact lens products. Complainant has operated the <visiondirect.com> website since 1999. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its VISION DIRECT mark (e.g., Reg. No. 2,732,805 issued July 1, 2003).
Respondent has not registered any of the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names earlier than June 24, 2003. The disputed domain names resolve to Complainant’s website through Complainant’s affiliate program.
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 holds multiple trademark registrations with the
USPTO for its VISION DIRECT mark (e.g., Reg. No. 2,732,805 issued July 1,
2003). Previous panels have found that a
complainant has established rights in a mark when the mark is registered with
the USPTO.
Complainant alleges that Respondent’s <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names are confusingly similar to Complainant’s VISION DIRECT mark. The disputed domain names contain common misspellings of Complainant’s mark and simply remove the space between “vision” and “direct” and add the generic top-level domain (“gTLD”) “.com.” The Panel finds common misspellings, the removal of a space, and the addition a gTLD fail to adequately distinguish the disputed domain names from Complainant’s mark. See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (finding that the respondent’s disputed domain names were confusingly similar to the complainant’s mark because the disputed domain names were common misspellings of the mark involving keys that were adjacent to the current keys comprising the complainant’s mark); see also Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel finds Respondent’s <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names are confusingly similar to Complainant’s VISION DIRECT mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names. The burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii) when the Complainant makes a prima facie case in support of its allegations. The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).
Respondent’s <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names all resolve to Complainant’s
website. The disputed domain names are
connected to Complainant’s affiliate program.
Respondent uses confusingly similar disputed domain names to receive
affiliate fees from Complainant. The
Panel finds this use is not a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i)
or legitimate noncommercial or fair uses of the domain name under Policy ¶
4(c)(iii). See Sports
Respondent has offered no evidence, and there is no evidence in the record, suggesting that Respondent is commonly known by the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names. Complainant asserts that Respondent is not authorized to use the disputed domain names. The WHOIS information identifies Respondent as “VISION DIRECT.” Therefore, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).
In addition, Respondent’s use of the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names constitutes
typosquatting. The Panel finds that
Respondent’s use of domain names that are common misspellings of the VISION
DIRECT mark to redirect Internet users seeking Complainant’s website fails to
establish rights or interests pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges Respondent’s use of the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names is a part of a pattern of bad faith use and registration. Previous panels have held that registration of multiple confusingly similar disputed domain names may constitute a pattern of bad faith registration and use of the disputed domain names. See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)). Furthermore, Respondent holds other domain names which contain typosquatted versions of other trademarks (e.g., <barenecessitise.com>, <lifelcock.com>, and <timelief.com>). The Panel finds this constitutes a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)).
Respondent profits from Complainant’s affiliate fee program. Respondent uses the confusingly similar disputed domain names to resolve to Complainant’s <visiondirect.com> website. The Panel finds Respondent’s use of confusingly similar disputed domain names to profit from Complainant’s affiliation program constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program); see also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy.”).
Furthermore, Respondent has engaged in typosquatting through its use of the <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names, which are common misspellings of Complainant’s VISION DIRECT mark. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); 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.”).
The Panel finds Policy ¶ 4(a)(i) 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 <vidsiondirect.com>, <viosiondirect.com>, <visinodirect.com>, <visiomdirect.com>, <visiondierct.com>, <visiondiretc.com>, <visionirect.com>, and <visoindirect.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: November 10, 2009
National
Arbitration Forum
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