Altrec Inc. v. RegistrarAds, Inc.
Claim Number: FA1111001416956
Complainant is Altrec Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is RegistrarAds, Inc. (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com>, registered with Dotregistrar.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 22, 2011; the National Arbitration Forum received payment on November 23, 2011.
On November 23, 2011, Dotregistrar confirmed by e-mail to the National Arbitration Forum that the <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com> domain names are registered with Dotregistrar and that Respondent is the current registrant of the names. Dotregistrar has verified that Respondent is bound by the Dotregistrar registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 29, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 19, 2011 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@alirec.com, postmaster@altreo.com, postmaster@alyrec.com, and postmaster@eltrec.com. Also on November 29, 2011, 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 December 27, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com> domain names are confusingly similar to Complainant’s ALTREC.COM mark.
2. Respondent does not have any rights or legitimate interests in the <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com> domain names.
3. Respondent registered and used the <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Altrec Inc., is an online retailer of outdoor apparel and sporting equipment designed for hiking, camping, bicycling, backpacking, and snow and water sports. Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the ALTREC.COM mark (Reg. No. 2,468,275 registered July 10, 2001).
Respondent, RegistrarAds, Inc., registered the <altreo.com> domain name on July 17, 2003; the <eltrec.com> and <alyrec.com> domain names on December 27, 2004;, and the <alirec.com> domain name on June 26, 2005. The disputed domain names resolve to websites hosting pay-per-click directories that feature links to a variety of third-party websites, including Complainant’s own website and those of Complainant’s competitors.
Respondent has been involved as the respondent in previous UDRP proceedings in which the disputed domain names were transferred to the respective complainants. See Stichting Hanzehogeschool Groningen v. RegistrarAds, Inc., D2011-1126 (WIPO Aug. 3, 2011); see also Viajes Marsans, S.A. v. RegistrarAds, Inc., D2009-0344 (May 13, 2009); see also Cybertania, Inc. v. RegistrarAds, Inc., FA 1259684 (Nat. Arb. Forum June 15, 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 owns a trademark registration with the USPTO for the ALTREC.COM mark (Reg. No. 2,468,275 registered July 10, 2001). Past panels have repeatedly concluded that a trademark registration with the USPTO sufficiently establishes Complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”). The Panel thus determines that Complainant has proven rights in the ALTREC.COM mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com> domain names are confusingly similar to Complainant’s ALTREC.COM mark because each disputed domain name merely replaces one letter with a different letter. The Panel finds that minor misspellings that exchange one letter in Complainant’s mark for a different letter do not prevent a finding of confusing similarity according to Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); 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). The Panel accordingly concludes that Respondent’s <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com> domain names are confusingly similar to Complainant’s ALTREC.COM mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has put forth a prima facie case, the burden shifts to Respondent to demonstrate its rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has adequately established a prima facie case in these proceedings. Since Respondent has failed to respond to the allegations against it, the Panel may assume that Respondent lacks any rights and legitimate interests in the disputed domain names. The Panel, however, elects to consider the evidence in record in light of the Policy ¶ 4(c) factors to determine if Respondent has any rights or legitimate interests in the disputed domain names. 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 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.”).
Complainant argues that Respondent has not been commonly known by the disputed domain names. Complainant asserts that Respondent is not sponsored by or legitimately affiliated with Complainant and that Complainant has not given Respondent permission to use the ALTREC.COM mark in any way. The WHOIS information for the disputed domain names identifies the registrant as “RegistrarAds, Inc.,” which indicates no nominal association between Respondent and the disputed domain names. The Panel thus holds that the WHOIS information and the lack of Respondent’s arguments otherwise indicates that Respondent is not commonly known by the disputed domain names and therefore has no rights and legitimate interests according to Policy ¶ 4(c)(ii). 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 Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that respondent was commonly known by the disputed domain name).
Complainant contends that Respondent is using the disputed domain names to redirect Internet users to directory websites featuring generic links to third-party businesses, including Complainant and Complainant’s competitors. Complainant alleges that Respondent receives pay-per-click revenue from these links. The Panel concludes that using Complainant’s mark to create confusingly similar domain names and host pay-per-click links does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶¶ 4(c)(i) and (iii). See Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name); 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 also asserts that Respondent’s disputed domain names are examples of typosquatting, minor misspellings of Complainant’s mark intending to take advantage of Internet users’ typographical errors. The Panel finds that typosquatting is evidence that Respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”); see also 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’”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent has been involved as the respondent in previous UDRP proceedings in which the disputed domain names were transferred to the respective complainants. See Stichting Hanzehogeschool Groningen v. RegistrarAds, Inc., D2011-1126 (WIPO Aug. 3, 2011); see also Viajes Marsans, S.A. v. RegistrarAds, Inc., D2009-0344 (May 13, 2009); see also Cybertania, Inc. v. RegistrarAds, Inc., FA 1259684 (Nat. Arb. Forum June 15, 2009). Complainant argues that these prior UDRP proceedings involving domain names containing others’ trademarks indicates that Respondent has a pattern of bad faith registration and use according to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting).
Complainant makes no specific allegations under Policy ¶ 4(b)(iii) regarding Respondent’s use of the disputed domain names. The Panel finds, however, that the screenshots provided by Complainant show that many of the links featured on the resolving websites advertise Complainant’s competitors, such as “Anderson-Outfitters.com,” “Outdoors, Inc,” “Merrell,” and others. The Panel determines that advertising these competitors via pay-per-click links under Complainant’s mark disrupts Complainant’s mark by diverting consumers to competitors and providing advertising to these competitors under Complainant’s mark. The Panel therefore holds that Respondent has shown bad faith registration and use according to Policy ¶ 4(b)(iii). 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)(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); see also 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)).
Complainant also fails to make any specific allegations under Policy ¶ 4(b)(iv). The Panel finds, however, that as Respondent’s disputed domain names incorporate a very similar variation of Complainant’s mark, Respondent likely registered the disputed domain names with the intent of attracting Complainant’s customers. The Panel also determines that the links displayed at each of the disputed domain names generate profit for Respondent in the form of click-through fees. As a result, the Panel concludes that Respondent intended to use Complainant’s mark in the disputed domain names to attract and mislead consumers by creating a likelihood of confusion for Respondent’s own commercial gain, which is evidence of bad faith registration and use according to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was likely diverting Internet users searching for the complainant to its own website and likely profiting); see also Univ. 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).”).
The Panel previously concluded that Respondent is engaged in the practice of typosquatting through its registration of confusingly similar domain names. The Panel finds this practice of typosquatting is evidence by itself of bad faith registration and use under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); 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 Complainant has satisfied 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 <alirec.com>, <altreo.com>, <alyrec.com>, and <eltrec.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: December 28, 2011
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