national arbitration forum

 

DECISION

 

Charlotte Russe Merchandising, Inc. v. Diamond Point Enterprises Limited c/o Diamond Point

Claim Number: FA1001001301277

 

PARTIES

 

Complainant is Charlotte Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Diamond Point Enterprises Limited c/o Diamond Point (“Respondent”), Thailand.

 

REGISTRAR AND DISPUTED DOMAIN NAME

 

The domain name at issue is <charoltterusse.com>, registered with Fabulous.com Pty Ltd.

 

PANEL

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on January 4, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 5, 2010.

 

On January 2, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <charoltterusse.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name.  Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 January 7, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 27, 2010 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@charoltterusse.com by e-mail.

 

On January 7, 2010 the National Arbitration Forum received an e-mail from Respondent.  Because there was no indication that Respondent considers said e-mail its formal Response, it is treated as an Other Correspondence and not a Response.

In its Other Correspondence, Respondent implicitly consents to transfer the <charoltterusse.com> domain name to Complainant.[1]

 

On February 4, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

 

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <charoltterusse.com> domain name is confusingly similar to Complainant’s CHARLOTTE RUSSE mark.

 

2.      Respondent does not have any rights or legitimate interests in the <charoltterusse.com> domain name.

 

3.      Respondent registered and used the <charoltterusse.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

Complainant, Charlotte Russe Merchandising, Inc., is a mall-based specialty retailer of clothing and accessories.  Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHARLOTTE RUSSE mark (e.g., Reg. No. 1,485,692 issued April 19, 1988).

 

Respondent registered the <charoltterusse.com> domain name on December 11, 2003.  Respondent’s disputed domain name resolves to a website displaying third party links to websites offering clothing and accessory products in competition with Complainant.

 

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 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.

 

Identical and/or Confusingly Similar

 

Complainant owns multiple trademark registrations for the CHARLOTTE RUSSE mark with the USPTO (e.g., Reg. No. 1,485,692 issued April 19, 1988).  The Panel finds that Complainant has established rights in the CHARLOTTE RUSSE mark for purposes of Policy ¶ 4(a)(i) through its trademark registration with the USPTO.  See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).

 

Complainant argues that Respondent’s <charoltterusse.com> domain name is confusingly similar to Complainant’s CHARLOTTE RUSSE mark pursuant to Policy ¶ 4(a)(i).  Respondent’s disputed domain name contains a misspelled version of Complainant’s mark and adds the generic top-level domain (“gTLD”) “.com.”  The Panel finds that a disputed domain name that contains a misspelled version of a complainant’s mark, in this case the flipping of the letters “o” and “l,” fails at distinguishing the disputed domain name and instead creates a confusing similarity between the disputed domain name and the complainant’s mark.  See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the 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 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).

 

In addition, the Panel finds that the addition of a gTLD is irrelevant in distinguishing a disputed domain name from a registered mark.  See 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 that Respondent’s disputed domain name is confusingly similar to Complainant’s CHARLOTTE RUSSE mark pursuant to Policy ¶ 4(a)(i).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant has sufficiently met its burden of producing a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).  Therefore, it is Respondent’s responsibility to repudiate Complainant’s assertion and provide evidence that Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).  See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”).  However, Respondent has failed to respond to the Complaint.  Consequently, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name.  Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name.  It also allows the Panel to accept all reasonable allegations set forth…as true.”). The Panel will nevertheless examine the record in consideration of the factors cited under Policy ¶ 4(c).

 

Respondent has offered no evidence, and there is no evidence in the record, suggesting that Respondent is commonly known by the disputed domain name.  Complainant asserts that Respondent is not authorized to use the CHARLOTTE RUSSE mark.  The WHOIS information identifies registrant as “Diamond Point Enterprises Limited c/o Diamond Point.”  Therefore, the Panel finds that Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).

 

Respondent’s disputed domain name resolves to a website featuring advertisements and links relating to Complainant’s competitors in the clothing and accessories industry.  The Panel may infer that Respondent profits through the generation of click-through fees from the links to Complainant’s competitors.  Therefore, the Panel finds that Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii).  See 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use 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)).

 

Complainant contends that Respondent has engaged in the practice of typosquatting.  Respondent is taking advantage of Internet users that are attempting to reach Complainant, but mistakenly misspelling Complainant’s CHARLOTTE RUSSE mark.  The Panel finds that Respondent’s engagement in the practice of typosquatting is evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).  See 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”); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent intended to disrupt Complainant’s business and take advantage of Complainant’s goodwill surrounding its mark by displaying third-party links to Complainant’s competitors in the clothing and accessories industry.  The Panel therefore finds that Respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See David Hall Rare Coins v. Texas Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).

 

Complainant contends that Respondent is gaining commercially through this diversion, through click-through fees that Respondent is presumably receiving from its use of the disputed domain name. The Panel finds that Respondent is intentionally using the disputed domain name for commercial gain through a likelihood of confusion with Complainant’s mark, and so, pursuant to Policy ¶ 4(b)(iv), the Panel finds that this use for commercial gain also constitutes evidence of registration and use in bad faith.  See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also University of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees.   Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).

 

Complainant alleges that typosquatting is itself evidence of bad faith registration and use under Policy ¶ 4(a)(iii).  The Panel agrees and finds that Respondent’s disputed domain name is merely a typosquatted version of Complainant’s CHARLOTTE RUSSE mark, and that such typosquatting constitutes bad faith registration and use under Policy ¶ 4(a)(iii).  See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark); see also National 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 that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <charoltterusse.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Bruce E. Meyerson, Panelist

Dated:  February 17, 2010

 

 

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