Charlotte Russe Merchandising, Inc. v. Kanter Associates SA c/o Admin
Claim Number: FA1004001319921
Complainant is Charlotte Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <charoletterouse.com>, registered with Fabulous.com Pty Ltd.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2010.
On April 19, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <charoletterouse.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 April 23, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2010 by which Respondent could file a response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@charoletterouse.com. Also on April 23, 2010, the Written Notice of the Complaint, notifying Respondent of the email addressed served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 21, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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" through submission of a Written Notice, as defined in Rule 1. 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:
Complainant is a mall-based
specialty retailer of clothing and accessories.
Complainant owns mark
registrations with the United States Patent and Trademark Office (“USPTO”) for
the CHARLOTTE RUSSE marks (including Reg. No. 2,414,477, issued December 19, 2000).
Respondent registered the
<charoletterouse.com> domain
name on March 18, 2002.
Respondent’s domain name
resolves to a website featuring links to other websites unaffiliated with
Complainant, some of which compete with the business of Complainant.
Respondent’s <charoletterouse.com> domain name is confusingly similar to Complainant’s CHARLOTTE RUSSE mark.
Respondent is not commonly known by the disputed domain name.
Respondent’s domain name intentionally misspells Complainant’s mark and includes common typographical errors in order to divert Internet users seeking Complainant.
Respondent does not have any rights to or legitimate
interests in the domain name <charoletterouse.com>.
Respondent has been a
respondent in numerous other UDRP proceedings in which contested domain names
were transferred to complainants. See,
for example,
Respondent registered and uses the <charoletterouse.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant owns multiple trademark registrations with the
USPTO for the CHARLOTTE RUSSE marks. Such
registrations are conclusive evidence of Complainant’s rights in the CHARLOTTE
RUSSE marks pursuant to Policy ¶ 4(a)(i), even when
Respondent lives or operates in another country. See AOL LLC v. Interrante, FA 681239
(Nat. Arb. Forum May 23, 2006) (finding that where a complainant had submitted
evidence of its mark registration with the USPTO, “such evidence establishes
complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Renaissance
Hotel Holdings, Inc. v. Renaissance
Respondent’s <charoletterouse.com> domain name is confusingly similar to Complainant’s CHARLOTTE RUSSE mark because the differences between the mark and the domain name are only minor misspellings or typographical errors. Specifically, the domain name transposes the letter “o” and the letter “l,” introduces an extra letter “e,” and misspells “russe” as “rouse.” In addition, the disputed domain name appends the generic top-level domain (“gTLD”) “.com.” Such differences do not distinguish the domain name from Complainant’s mark, especially when the two remain phonetically similar. See Am. Online, Inc. v. Triple E Holdings Ltd., FA 281584 (Nat. Arb. Forum July 15, 2004):
Words
that are spelled differently but are phonetically similar do not negate the
confusing similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).
See also Am. Online, Inc. v. David, FA 104980 (Nat. Arb. Forum Apr. 10, 2002): “The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”
Similarly, the addition of a gTLD is required for domain names, and it is, therefore, irrelevant to a Policy ¶ 4(a)(i) analysis. See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003):
It
has been established that the addition of a generic top-level domain is
irrelevant when considering whether a domain name is identical or confusingly
similar under the Policy.
Thus, the Panel finds that Respondent’s <charoletterouse.com> disputed domain name is confusingly similar to Complainant’s CHARLOTTE RUSSE mark for purposes of Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights to and legitimate interests in the disputed domain name. Once Complainant makes a prima facie showing to this effect, Respondent acquires the burden of proving the existence of its rights to or legitimate interests in the contested domain. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that:
complainant must first
make a prima facie case that
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to respondent to show it
does have rights or legitimate interests.
See also 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.”
Complainant has produced a prima facie case under this head of the Complaint. Owing to
Respondent’s failure to respond to these proceedings, we may therefore presume
that Respondent does not have rights to or legitimate interests in the disputed
domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002):
[B]ased on Respondent's failure to respond, it is presumed
that Respondent lacks all rights and legitimate interests in the disputed
domain name.
See also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where a respondent fails to respond).
Nonetheless, we will examine the record before us, in light of the criteria set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by observing that Complainant alleges, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name. Moreover, the WHOIS information for the disputed domain name does not indicate any nominal association between Respondent and the disputed domain name. We therefore conclude that Respondent is not commonly known by the disputed domain name, and, accordingly, has failed to demonstrate that it has rights to or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by the disputed domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by the domain name).
We also note that Complainant alleges, and Respondent does
not deny, that Respondent’s domain name resolves to a generic website featuring
links to other websites unaffiliated with Complainant, and that some of these
websites are in competition with the business of Complainant. We may presume from the circumstances
presented that Respondent receives commercial income, in the form of
click-through or similar fees, for each visit to any of these links by an
Internet user. Respondent’s use of the disputed domain name in connection with
such a website does not constitute a bona
fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use as provided in 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 contested 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 Constellation Wines U.S., Inc. v.
Finally under this head of the Complaint, Complainant contends that Respondent’s domain name intentionally misspells Complainant’s mark and includes common typographical errors in order to divert Internet users seeking Complainant. This practice, called typo-squatting, is independent evidence that Respondent lacks rights to or legitimate interests in the disputed domain name. 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 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 Amazon.com, Inc. v. J J Domains, FA 514939 (Nat. Arb. Forum Sept. 2 2005) (“respondent lacks rights and legitimate interests in the <www-amazon.com> domain name because respondent's addition of the prefix "www-" to complainant's AMAZON.COM mark constitutes typosquatting.”).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
There is uncontested evidence from other UDRP proceedings
that Respondent has engaged in a pattern of registering domain names
incorporating other parties’ marks. See, for
example,
In addition, Respondent’s domain name resolves to a directory website advertising links to other third-party websites, some of which compete with the business of Complainant. Respondent’s maintenance of this website disrupts Complainant’s business because Internet users seeking information about Complainant may be diverted to Respondent’s directory website and therefore subsequently arrive at a competitor’s site. Respondent’s behavior, as alleged, constitutes disruption of Complainant’s business, which is evidence of bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use of domain names pursuant to Policy ¶ 4(b)(iii) by using the domain names to operate a commercial search engine with links to the products of a complainant and to a complainant’s business competitors); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a contested domain name to attract Internet users to a directory website containing links to the websites of a complainant’s commercial competitors represented bad faith registration and use of the domain under Policy ¶ 4(b)(iii)).
We have already concluded that Respondent is engaged in typo-squatting
through the use of the disputed domain name.
Typo-squatting is itself evidence of bad faith registration and use of
the contested domain name pursuant to Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain
Registration
Respondent's
registration of the domain names in dispute constitutes bad faith because the
domain names are merely typosquatted versions of the [complainant’s] IMDB
mark.).
For these reasons, the Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <charoletterouse.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 4, 2010
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