Cabela's, Inc. v. Na na c/o Digi Real Estate Foundation
Claim Number: FA1001001301886
Complainant is Cabela's, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <cabbelas.com>, registered with Moniker.
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 January 6, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 7, 2010.
On January 8, 2010, Moniker confirmed by e-mail to the National Arbitration Forum that the <cabbelas.com> domain name is registered with Moniker and that Respondent is the current registrant of the name. 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 January 11, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 1, 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@cabbelas.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 9, 2010, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cabbelas.com> domain name is confusingly similar to Complainant’s CABELAS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <cabbelas.com> domain name.
3. Respondent registered and used the <cabbelas.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cabela’s, Inc., is an outfitter of hunting,
fishing, and outdoor gear. Complainant
began operations in 1961, and now sells its products in every state in the
Respondent registered the disputed domains on or after February 18, 2005. The <cabbelas.com> domain name resolves to a website that displays links to third-party websites in direct competition with Complainant’s outfitting business.
Complainant contends that Respondent has been the Respondent in several other UDRP proceedings. See Citigroup Inc. v. Digi Real Estate Found., FA 964679 (Nat. Arb. Forum May 30, 2007); see also Seiko Epson Corp. v. Digi Real Estate Found., FA 1279698 (Nat. Arb. Forum Oct. 5, 2009).
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 has provided evidence of a trademark
registration for the CABELAS.COM mark (e.g.,
Reg. No. 2,247,977 issued May 25, 1999) with the USPTO. The Panel finds Complainant has established
rights under Policy ¶ 4(a)(i) in the CABELAS.COM mark through its registration
of the mark with the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat.
Arb. Forum
Complainant contends Respondent’s <cabbelas.com> domain name is confusingly similar to Complainant’s CABELAS.COM mark because Respondent’s domain name simply adds an extra letter to Complainant’s mark. The Panel finds the misspelling of Complainant’s mark in a disputed domain name does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). 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 Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. 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 name 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 name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Digi Real Estate Foundation.” Complainant contends Respondent is not sponsored by or legitimately affiliated with Complainant in any way and Complainant has not 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 name 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 uses the disputed domain name to resolve to a website featuring a third-party links to Complainant’s competitors in the outfitting industry. The Panel finds Respondent use of the confusingly similar disputed domain is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair uses of the domain name under Policy ¶ 4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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 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)).
In addition, Respondent’s use of the <cabbelas.com> domain name
constitutes typosquatting. The Panel
finds Respondent’s use of a domain name that is a common misspelling of the
CABELAS.COM 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 that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges Respondent has engaged in a pattern of
registering domain names in bad faith. Respondent has been a respondent in numerous UDRP
proceedings in which disputed domain names were transferred from Respondent to
the complainants in those cases. See Citigroup Inc. v. Digi Real Estate Found., FA 964679
(Nat. Arb. Forum May 30, 2007); see also
Seiko Epson Corp. v. Digi Real Estate Found., FA 1279698 (Nat. Arb. Forum
Oct. 5, 2009). The Panel finds this
constitutes a pattern of bad faith registration and use of domain names as
outlined in Policy ¶ 4(b)(ii). See Westcoast
Contempo Fashions Ltd. v.
Respondent is using the disputed domain name to display links to third-party competitors in the outfitting industry. The Panel finds Respondent’s use of the disputed domain name disrupts Complainant’s outfitting business, which constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); 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)(iii) 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).
The Panel infers Respondent receives click-through fees displaying third-party links on the website resolving from the disputed domain name. Internet users, interested in Complainant and Complainant’s outdoor products, may become confused as to Complainant’s affiliation and sponsorship of the disputed domain name. The Panel finds Respondent’s use constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See 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); see also 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)).
Furthermore, Respondent has engaged in typosquatting through its use of the <cabbelas.com> domain name, which is a common misspelling of Complainant’s CABELAS.COM mark. Therefore, the Panel finds Respondent’s use of the disputed domain name 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 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 <cabbelas.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: February 23, 2010
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