Cabela's, Inc. v. Transure Enterprise Ltd c/o Host Master
Claim Number: FA0910001292036
Complainant is Cabela's, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <cabelaws.com> and <cabvelas.com>, registered with Above, 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.
Hon. Karl V. Fink (Ret) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 29, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 30, 2009.
On November 1, 2009, Above, Inc. confirmed by e-mail to the National Arbitration Forum that the <cabelaws.com> and <cabvelas.com> domain names are registered with Above, Inc. and that Respondent is the current registrant of the names. Above, Inc. has verified that Respondent is bound by the Above, 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 November 3, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 23, 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@cabelaws.com and postmaster@cabvelas.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 1, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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." 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 <cabelaws.com> and <cabvelas.com> domain names are confusingly similar to Complainant’s CABELA’S mark.
2. Respondent does not have any rights or legitimate interests in the <cabelaws.com> and <cabvelas.com> domain name.
3. Respondent registered and used the <cabelaws.com> and <cabvelas.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cabela’s, Inc., owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CABELA’S mark (e.g., Reg. No. 1,151,981 issued April 21, 1981) in connection with retail and mail order services for sporting and related goods.
Respondent, Transure Enterprise Ltd c/o Host Master, registered the disputed domain name <cabelaws.com> on February 17, 2008 and the disputed domain name <cabvelas.com> on September 5, 2008. The disputed domain names resolve to websites that feature generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees from these linked websites.
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 asserts rights in its CABELA’S mark through its
holding of multiple registrations for the CABELA’S mark with the USPTO (e.g.,
Reg. No. 1,151,981 issued April 21, 1981).
The Panel finds that Complainant has established rights in the CABELA’S
mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the
[complainant’s] mark is registered with the USPTO, [the] complainant has met
the requirements of Policy ¶ 4(a)(i).”); see
also Renaissance
Hotel Holdings, Inc. v. Renaissance
Complainant argues that
Respondent’s <cabelaws.com>
and <cabvelas.com> domain names are confusingly similar to
Complainant’s CABELA’S mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain names are
confusingly similar to Complainant’s CABELA’S mark because Respondent’s domain
names merely add a letter to Complainant’s mark, delete the apostrophe, and add
the generic top-level domain (“gTLD”) “.com.”
The Panel finds that the addition of a letter to Complainant’s mark
creates a confusing similarity between the disputed domain names and
Complainant’s mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4,
2004) (“The mere addition of a single
letter to the complainant’s mark does not remove the respondent’s domain names
from the realm of confusing similarity in relation to the complainant’s mark
pursuant to Policy ¶ 4(a)(i).”); 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 the complainant’s marks). Additionally, the Panel finds that the
deletion of an apostrophe does not distinguish the disputed domain names from
Complainant’s mark and is confusingly similar.
See 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 Daddy’s Junky Music Stores, Inc. v. Kausar, FA 140598 (Nat. Arb.
Forum Feb. 11, 2003) (“The lack of an apostrophe in the domain name is not a
distinguishing difference because punctuation is not significant in determining
the similarity of a domain name and a mark.”).
The Panel also finds that the addition of a gTLD to a domain name is
irrelevant in distinguishing a disputed domain name and a mark. See
Jerry
Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names pursuant to Policy 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Transure Enterprise Ltd c/o Host Master.” Respondent is not sponsored by or legitimately affiliated with Complainant in any way, nor has Complainant given Respondent permission to use Complainant’s mark in a domain name. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s disputed domain names were registered on February 17, 2008 and September 5, 2008. The disputed domain names resolve to websites that feature generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees from these linked websites. The Panel finds that Respondent’s use of the disputed domain names is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Complainant argues that Respondent is using typographical errors in the confusingly similar disputed domain names to redirect Internet users to Complainant’s website and attempting to profit from it through the collection of pay-per-click fees. The Panel finds that Respondent has no rights or legitimate interests under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of
the disputed domain names to link Internet users to websites featuring
third-party links which are in competition with Complainant constitutes a
disruption of Complainant’s business and constitutes bad faith registration and
use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt.
Servs., FA 877982
(Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly
similar domain name to attract Internet users to a directory website containing
commercial links to the websites of a complainant’s competitors represents bad
faith registration and use under Policy ¶ 4(b)(iii)); see also
The Panel finds Respondent’s use of the disputed domain names and Respondent’s attempt to intentionally attract Internet users and profit through the receipt of pay-per-click fees by creating a strong likelihood of confusion with Complainant’s CABELA’S mark is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
As established previously, Respondent has engaged in the
practice of typosquatting by intentionally misspelling Complainant’s CABELA’S
mark to misdirect Internet users. The
Panel finds typosquatting is itself evidence of bad faith registration and use
under Policy ¶ 4(c)(iii). See Microsoft
Corp. v. Domain Registration
The Panel finds that Policy ¶ 4(a)(iii) 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 <cabelaws.com> and <cabvelas.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret), Panelist
Dated: December 15, 2009
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