BuySeasons, Inc. v. Oleg Techino a/k/a Oleg
Techino a/k/a Balram Brahmin c/o Balram Brahmin a/k/a Belroots Pty Ltd c/o Luis
de Carvalho a/k/a Chin-Hui Wu c/o Chin-Hui Wu a/k/a Denesh Kumar c/o Denesh
Kumar a/k/a Denholm Borg c/o Denholm Borg a/k/a Elarson & Associates Pty
Ltd c/o Eric Larson c/o Domain Administrator a/k/a Lidnick Webcorp Inc c/o
Lidnick Webcorp a/k/a Liquid SEO Limited c/o Julian Greenberg a/k/a Loshedina
Inc c/o Xi Na a/k/a Luchichang Pty Ltd c/o Luchichang Luchichang a/k/a Marcelos
Vainez c/o Marcelos Vainez a/k/a Netmilo c/o Stoyan Bagdanov a/k/a Orel Hlasek
LLC c/o Orel Hlasek a/k/a Vlad Obchikov c/o Vlad Obchikov a/k/a Volchar Pty Ltd
c/o Domain Administrator a/k/a Web Pescados LLC c/o Augustine Rivera a/k/a
Webatopia Marketing Limited c/o Michael Short a/k/a Alex Ovechkin a/k/a WuWeb
Pty Ltd c/o Michael Chung Wu a/k/a ZincFusion Limited c/o Vivian Cox
Claim Number: FA1007001337662
Complainant is BuySeasons,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <buycostumis.com>, <buycostumee.com>, <buyycostumes.com>, <bbuycostumes.com>, <buycostumew.com>, <buycostumez.com>, <buycostumess.com>, <buuycostumes.com>, <byuycostumes.com>, <buycostummes.com>, <buycos6umes.com>, <buycoxtumes.com>, <buycoostumes.com>, <buhcostumes.com>, <buycosfumes.com>, <buycostum3s.com>, <buycostyumes.com>, <buycostumds.com>, <buycostuumes.com>, <buycostumees.com>, <guycostumes.com>, and <buyccostumes.com>, registered with GoDaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically July 27, 2010.
On July 30, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <buycostumis.com>, <buycostumee.com>, <buyycostumes.com>, <bbuycostumes.com>, <buycostumew.com>, <buycostumez.com>, <buycostumess.com>, <buuycostumes.com>, <byuycostumes.com>, <buycostummes.com>, <buycos6umes.com>, <buycoxtumes.com>, <buycoostumes.com>, <buhcostumes.com>, <buycosfumes.com>, <buycostum3s.com>, <buycostyumes.com>, <buycostumds.com>, <buycostuumes.com>, <buycostumees.com>, <guycostumes.com>, and <buyccostumes.com> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 5, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@buycostumis.com, postmaster@buycostumee.com, postmaster@buyycostumes.com, postmaster@bbuycostumes.com, postmaster@buycostumew.com, postmaster@buycostumez.com, postmaster@buycostumess.com, postmaster@buuycostumes.com, postmaster@byuycostumes.com, postmaster@buycostummes.com, postmaster@buycos6umes.com, postmaster@buycoxtumes.com, postmaster@buycoostumes.com, postmaster@buhcostumes.com, postmaster@buycosfumes.com, postmaster@buycostum3s.com, postmaster@buycostyumes.com, postmaster@buycostumds.com, postmaster@buycostuumes.com, postmaster@buycostumees.com, postmaster@guycostumes.com, and postmaster@buyccostumes.com by e-mail. Also on August 5, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses 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 September 3, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain names that Respondent registered, <buycostumis.com>, <buycostumee.com>, <buyycostumes.com>, <bbuycostumes.com>, <buycostumew.com>, <buycostumez.com>, <buycostumess.com>, <buuycostumes.com>, <byuycostumes.com>, <buycostummes.com>, <buycos6umes.com>, <buycoxtumes.com>, <buycoostumes.com>, <buhcostumes.com>, <buycosfumes.com>, <buycostum3s.com>, <buycostyumes.com>, <buycostumds.com>, <buycostuumes.com>, <buycostumees.com>, <guycostumes.com>, and <buyccostumes.com> are confusingly similar to Complainant’s BUYCOSTUMES.COM mark.
2. Respondent has no rights to or legitimate interests in the <buycostumis.com>, <buycostumee.com>, <buyycostumes.com>, <bbuycostumes.com>, <buycostumew.com>, <buycostumez.com>, <buycostumess.com>, <buuycostumes.com>, <byuycostumes.com>, <buycostummes.com>, <buycos6umes.com>, <buycoxtumes.com>, <buycoostumes.com>, <buhcostumes.com>, <buycosfumes.com>, <buycostum3s.com>, <buycostyumes.com>, <buycostumds.com>, <buycostuumes.com>, <buycostumees.com>, <guycostumes.com>, and <buyccostumes.com> domain names.
3. Respondent registered and used the <buycostumis.com>, <buycostumee.com>, <buyycostumes.com>, <bbuycostumes.com>, <buycostumew.com>, <buycostumez.com>, <buycostumess.com>, <buuycostumes.com>, <byuycostumes.com>, <buycostummes.com>, <buycos6umes.com>, <buycoxtumes.com>, <buycoostumes.com>, <buhcostumes.com>, <buycosfumes.com>, <buycostum3s.com>, <buycostyumes.com>, <buycostumds.com>, <buycostuumes.com>, <buycostumees.com>, <guycostumes.com>, and <buyccostumes.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, BuySeasons, Inc., is an online-only retailer of costumes and accessories. Complainant uses its BUYCOSTUMES.COM mark in connection with its costumes and accessories. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its BUYCOSTUMES.COM mark (e.g., Reg. No. 2,793,599 issued December 16, 2003).
Respondent registered the disputed domain names October 22, 2004. The disputed domain names resolve to Complainant’s website, <buycostumes.com>, 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."
Given 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 will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences as 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 Complainant to 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.
Preliminary Issue:
Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities that control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The Panel finds that Complainant provided sufficient evidence that the same entity registered all of the disputed domain names under multiple aliases.
Complainant first alleges that the disputed domain names are confusingly similar to a mark in which Complainant has protected rights. Past panels have held that a federal trademark registration is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations). Complainant holds trademark registrations for its BUYCOSTUMES.COM mark with the USPTO (e.g., Reg. No. 2,793,599 issued December 16, 2003). In Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007), the panel found that a complainant is not required to register a mark within a country that a respondent resides in order to establish rights in a mark. Therefore, the Panel finds that Complainant established rights in its BUYCOSTUMES.COM mark pursuant to Policy ¶ 4(a)(i).
Complainant claims that Respondent’s disputed domain names are confusingly similar to Complainant’s BUYCOSTUMES.COM mark. The disputed domain names are all common misspellings of Complainant’s mark. The Panel finds that Respondent’s use of common misspellings of Complainant’s mark does not adequately distinguish the disputed domain names from Complainant’s mark. See 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); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also Am. Online Inc. v. Chinese ICQ Network, D2000-0808 (WIPO Aug. 31, 2000) (finding that the addition of the numeral 4 in the domain name <4icq.com> does nothing to deflect the impact on the viewer of the mark ICQ and is therefore confusingly similar).
Thus, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s BUYCOSTUMES.COM mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant next alleged that Respondent has no rights to or legitimate interests in any of the disputed domain names. The burden shifts to Respondent to prove it does have rights or legitimate interests when Complainant makes a prima facie case to support its allegations under Policy ¶ 4(a)(ii). The Panel finds that Complainant made a sufficient prima facie case. Respondent’s failure to respond to the Complaint allows the Panel to make an inference that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel still examines the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under a Policy ¶ 4(c) analysis. 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant also alleges that Respondent is not commonly known by the disputed domain names. Previous panels have determined that a respondent is not commonly known by a disputed domain name if the WHOIS information is not similar to the disputed domain name, if the complainant has not authorized the respondent to use complainant’s mark, and if the respondent has not presented any evidence that respondent is commonly known by the disputed domain name. 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 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).
Complainant claims that Respondent is not authorized or licensed to use Complainant’s BUYCOSTUMES.COM mark. The Panel finds that the WHOIS information is not similar to the disputed domain names. Moreover, Respondent failed to present evidence, and the Panel found non in the record, that would suggest that Respondent is commonly known by the disputed domain names. As a result, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Complainant urges as well that Respondent’s disputed domain
names resolve to Complainant’s official website, <buycostumes.com>,
through Complainant’s affiliate program.
Complainant claims that Respondent receives an affiliate fee for each
Internet user redirected to Complainant’s website. The Panel finds that such use by Respondent of confusingly
similar disputed domain names does not constitute a bona fide offering of oods or services under Policy ¶ 4(c)(i) and
it is not a legitimate noncommercial or fair use of the disputed domain names
pursuant to Policy ¶ 4(c)(iii). See Deluxe
Corp. v.
Complainant further contends that Respondent’s use of the
disputed domain names constitutes typosquatting. Complainant alleges that Respondent’s
disputed domain names are simple
misspellings of Complainant’s mark. Complainant
contends that Respondent is attempting to take advantage of typing mistakes
made by Internet users seeking Complainant.
The Panel finds that Respondent’s use of the disputed domain names that
contain typosquatted versions of Complainant’s mark provides further evidence
that Respondent lacks rights or interests in the disputed domain names under
Policy ¶ 4(a)(ii).
See Microsoft Corp. v. Domain Registration
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain names; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant lastly claims that Respondent is commercially
benefiting from its use of the disputed domain names through the receipt of
affiliate fees. Complainant argues that
Respondent receives an affiliate fee each time an Internet user is redirected
back to Complainant’s website. Complainant
contends that Respondent is using the confusingly similar disputed domain names
in order to confuse Internet users into using Respondent’s domain names in
order for Respondent to profit from the affiliate fees. The Panel finds that
Respondent’s use of the confusingly similar disputed domain names constitutes
bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Sports
Respondent’s use of the disputed domain names also constitutes typosquatting. Respondent is using misspelled versions of Complainant’s BUYCOSTUMES.COM mark. Respondent is attempting to take advantage of typographical errors made by Internet users when they attempt to find Complainant on the Internet. The Panel finds that Respondent’s use of the misspelled versions of Complainant’s marks provide further evidence that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”); see also Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form).
The Panel finds that Respondent registered and used the disputed domain names in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <buycostumis.com>, <buycostumee.com>, <buyycostumes.com>, <bbuycostumes.com>, <buycostumew.com>, <buycostumez.com>, <buycostumess.com>, <buuycostumes.com>, <byuycostumes.com>, <buycostummes.com>, <buycos6umes.com>, <buycoxtumes.com>, <buycoostumes.com>, <buhcostumes.com>, <buycosfumes.com>, <buycostum3s.com>, <buycostyumes.com>, <buycostumds.com>, <buycostuumes.com>, <buycostumees.com>, <guycostumes.com>, and <buyccostumes.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 14, 2010.
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