Gamestop, Inc. v. Domain Administrator
Claim Number: FA1202001430646
PARTIES
Complainant is Gamestop, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain Administrator (“Respondent”), Jordan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwgamestop.com>, registered with Moniker Online Services, Inc.
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.
David A. Einhorn appointed as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 21, 2012; the National Arbitration Forum received payment on February 22, 2012.
On February 22, 2012, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwgamestop.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. 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 February 24, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 15, 2012 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@wwwgamestop.com. Also on February 24, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 March 28, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant alleges:
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS AND 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."
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.
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.”).
Complainant claims that its multiple registrations of the GAMESTOP and GAMESTOP.COM marks with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,707,460 reg. August 11, 1992 and Reg. No. 2,489,084 on Sept. 11, 2004) confer rights in the marks under Policy ¶ 4(a)(i). The Panel holds that Complainant has successfully established its rights in the GAMESTOP and GAMESTOP.COM marks under Policy ¶ 4(a)(i), despite the fact that Respondent resides in a country other than that in which Complainant has registered its mark. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Complainant further claims that Respondent’s <wwwgamestop.com> domain name is confusingly similar to Complainant’s GAMESTOP and GAMESTOP.COM marks within the meaning of Policy ¶ 4(a)(i). The Panel finds that the disputed domain name wholly includes Complainant’s mark, while adding the prefix “www”. Previous panels have found that this change is insufficient to distinguish a disputed domain name. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”). Thus, this Panel determines that the disputed domain name is confusingly similar to Complainant’s mark within the meaning of Policy ¶ 4(a)(i).
Complainant asserts that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), and further asserts that Complainant has never given Respondent permission to use Complainant’s mark in a domain name. The WHOIS information identifies Respondent as “Domain Administrator,” which the Panel agrees is not at all similar to the <wwwgamestop.com> domain name. Respondent has failed to present the Panel with any evidence that it is in fact commonly known by the disputed domain name. Based on the evidence in the record, the Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Complainant contends that the disputed domain is not being used in accordance with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a noncommercial or fair use under Policy ¶ 4(c)(iii). The Panel finds that the disputed domain name has resolved to a website featuring links to third-party websites, some of which directly compete with Complainant’s business. Previous panels have found that the use of a disputed domain name to operate a website containing links to various competing commercial websites did not constitute 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). See, e.g., Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Complainant contends that Respondent has engaged in typosquatting in its registration of the disputed domain name. The Panel finds that Respondent’s registration of a domain name, which simply adds the term “www” and a gTLD to Complainant’s mark, does indeed constitute typosquatting. The Panel thus concludes that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). 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 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 therefore finds that Policy ¶ 4(a)(ii) has also been satisfied.
The Panel finds that Respondent’s use of a confusingly similar domain name to resolve to a website featuring links to competing third-party websites disrupts Complainant’s business in bad faith under Policy ¶ 4(b)(iii). Many panels have found bad faith in similar circumstances, reasoning that a respondent’s use of a confusingly similar domain name to advertise competing products or services evidences the respondent’s intent to trade off of a complainant’s goodwill, thereby disrupting the complainant’s business. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant alleges that Respondent’s registration and use of the disputed domain name exhibits bad faith attraction for commercial gain of Internet users to its website under Policy ¶ 4(b)(iv). The Panel infers that Respondent has derived a commercial benefit from the operation of its site, likely through the collection of click-through revenues. The Panel concludes that Respondent’s use of a confusingly similar domain name suggests an intent to create confusion among Internet users as to whether Respondent’s site is affiliated with, or endorsed by, Complainant. Respondent has used this confusion to wrongfully associate itself with Complainant’s business, benefitting from Complainant’s goodwill. Respondent’s creation of confusion as to its affiliation with Complainant in order to realize a commercial gain constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
The Panel further finds that Respondent’s typosquatting was done for the purpose of disrupting Complainant’s business and constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of a domain name that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
The Panel therefore finds that Policy ¶ 4(a)(iii) has also 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 <wwwgamestop.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: April 10, 2012
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