national arbitration forum

DECISION

FragranceNet.com, Inc. v. Denesh Kumar / Netmilo / Orel Hlasek LLC / Web Pescados LLC / Belroots Pty Ltd / Vlad Obchikov / Balram Brahmin / Lidnick Webcorp Inc

Claim Number: FA1210001467807

PARTIES

Complainant is FragranceNet.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Denesh Kumar / Netmilo / Orel Hlasek LLC / Web Pescados LLC / Belroots Pty Ltd / Vlad Obchikov / Balram Brahmin / Lidnick Webcorp Inc (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com>, registered with Godaddy.Com, LLC.

PANEL

The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

Houston Putnam Lowry, Chartered Arbitrator, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on October 17, 2012; the National Arbitration Forum received payment on October 17, 2012.

On October 19, 2012, Godaddy.Com, LLC confirmed by e-mail to the National Arbitration Forum that the <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com> domain names are registered with Godaddy.Com, LLC and that Respondent is the current registrant of the names. Godaddy.Com, LLC has verified that Respondent is bound by the Godaddy.Com, LLC 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 October 22, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 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@fargrancenet.com, postmaster@ffragrancenet.com, postmaster@fraagrancenet.com, postmaster@fragraancenet.com, postmaster@fragranceent.com, postmaster@fragrancenat.com, postmaster@fragranncenet.com, and postmaster@frgarancenet.com. Also on October 22, 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 November 28, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A. Complainant

Evidence of Aliases

Respondent has registered each of the 8 Disputed Domain Name(s) cited in Section 4(a) (defined below) using falsified contact information in an attempt to frustrate the UDRP process which has historically required complaints to be filed against a single respondent. However, it is a straightforward matter to demonstrate conclusively that all of the Disputed Domain Name(s) are, in fact, controlled by a single entity. Under the auspices of UDRP Supplemental Rule 4(e) enacted by NAF, this complaint alleges that although the Disputed Domain Name(s) appear to be registered to different registrants, they are in fact registered to aliases of a single entity -- the Respondent.

Complainant’s authorized representative in this proceeding, CitizenHawk, has conducted extensive research and collected exhaustive data on a number of entities that repeatedly appeared in lists of typographical error domain name registrations for e-commerce brands. After examination, CitizenHawk presents the following facts and documentation to support that these numerous entities are actually the work of a single entity.

In this case, this entity engages in sophisticated processes of registering confusingly similar domain names using no less than 8 different aliases. However, there are commonalities across all of the registrations if examined in the context of a few simple principals that, when considered individually may seem innocuous, but when considered together are neither accidental nor coincidental.

All of the 8 Respondents in this case are named as respondents in NAF Claim No. FA1007001337664, which held that they are, in fact, one and the same Respondent;

The Disputed Domains names are all typographical errors of the Complainants primary website, <FRAGRANCENET.COM>;

All of the disputed domains were registered with GoDaddy.com, LLC;

All of the disputed domains were registered on January 3, 2005, a clear indication of bulk registration;

The DNS is identical for all 8 Disputed Domain Names: NS1.DSREDIRECTION”;

The IP Address for all of the Disputed Domains is the same (204.13.160.107);

The method of monetizing each of the Disputed Domain Name(s) as a parked page is the same for all the disputed domains, as well as the actual appearance of the pages, which are similar, if not exactly the identical.

The parking engine for the majority of the Disputed Domain Name(s) is provided by DSPARKNG.COM, service provided by Oversee.net, located at http://www.dsparking.com. The forwarding function can be observed through the use of an HTTP Viewer, like the one found at www.rexswain.com.

Respondent has employed the use of false contact information to frustrate the UDRP process to avoid responsibility for their deceptive actions in order to continue profiting from typographical errors based on Complainant’s website.

Cross referencing the patterns and commonalities documented above with the Disputed Domains Name(s) reveals one very simple implication - all of the Disputed Domain Name(s) belong to a single entity. The Respondent has registered the Disputed Domain Names for the sole purpose of continued profiting from typographical errors of Complainant’s Trademark(s), FRAGRANCENET and FRAGRANCENET.COM.

In conclusion, all of the Disputed Domain Name(s) should be considered as being controlled by a single entity for the purposes of satisfying the requirements of the NAF UDRP Supplemental Rule 4(e). There is overwhelming evidence that the Respondent has used these aliases with the bad faith intent of avoiding responsibility for fraudulently profiting from Complainant’s rights in the Marks.

FragranceNet.com, Inc. (“FragranceNet”) is the leading online retailer of discounted genuine brand name fragrances and beauty products. Originally operating under the name Telescents, Inc., the company has been in the fragrance and beauty business since 1997. After a merger in 1999, the company changed its name to FragranceNet.com, Inc., and its ticker symbol to “FRGN”.

As the owner of US Federal Trademarks for FRAGRANCENET and FRAGRANCENET.COM, FragranceNet has been using the Marks continuously since January of 1997 as an on-line retail store in the fields of perfumery, skin care, makeup, aromatherapy, candles and hair care preparations. In addition to the above the Complainant, also operates a wholesale business called FragranceNet Wholesale, offering wholesale prices to those purchasing in bulk, especially small shop owners.

On the web at WWW.FRAGRANCENET.COM and WWW.FRAGRANCE.COM, FragranceNet offers more than 16000 brand-name fragrances, skincare, hair care, makeup, as well as scented candles, aromatherapy and hair care products. The company carries major brands and designer name products such as Ralph Lauren, Christian Dior, Hermes, Nicole Miller, Yves Saint Laurent, Oscar de la Renta, Fendi, Dolce & Gabbana, Versace, Gucci, among others. These items and many others are sold at discounts of up to 70 percent off department store prices. The products sold by the Complainant are often hard-to-find and discontinued items.

FragranceNet is featured in major search engines, such as Yahoo!, Google, Overture, AOL, Findwhat, BizRate, Shopping.com, Frugal, and MySimon. In addition, the Company has established increased exposure through today's top online communities and malls, including placements within Buy.com, Ebates and MyPoints, and Upromise. The company has featured their products on Amazon.com since 2003. Recently, FragranceNet has been chosen to become an Anchor Seller for Sinobiomed Inc.’s Skincare products on Shopshipusa.

In addition to the above, the Complainant has also received many awards and recognitions such as:

Internet Retailer's Top 500 Retail Web sites, 2012, 2011, 2010 , 2009, 2008, 2007, 2006

BizRate Research Circle of Excellence Award, Platinum, 2006. The award recognizes the very best online retailers in customer satisfaction, as judged by previous online buyers from those retailers.

Internet Retailer's Top 400 Guide Leaders of Online Commerce, 2005

Using an advanced software platform that offers Web shoppers a host of leading-edge features, FragranceNet provides online shipping calculation for orders originating outside the U.S., a reminder club, extensive product searching options and electronic gift certificates and coupons. With this technology, FragranceNet has been able to enhance the store and expand its customer services enormously, providing FragranceNet with a level of stability, flexibility and scalability, which provides major assistance in driving its current growth. Publicly trading on the New York Stock Exchange, the corporate structure involves no debt.

By offering free U.S. shipping and handling orders over $70, an integrated network of over 300 suppliers, and real time inventory adjustment, the company’s formula for success has produced enviable results. In a highly competitive business, FragranceNet is recognized as a market leader in the sale of fragrances over the Internet.

As a result of Complainant's long and extensive advertising, promotion and marketing efforts, the FRAGRANCENET Marks identify and indicate the source of Complainant's goods and services to the consuming public, and distinguish its goods and services from those of others. The FRAGRANCENET Marks have become well-known to and widely recognized by consumers, having been aggressively protected through registration and enforcement.

Since its start in 1997, FragranceNet has continuously used the mark FRAGRANCENET and FRAGRANCENET.COM in connection to an on-line retail store in the fields of perfumery, aromatherapy, candles and hair care preparations. FragranceNet owns both Marks cited in Section 4(c) above for which it has obtained federal trademark registrations. None of these federal mark registrations have been abandoned canceled or revoked. FragranceNet has spent hundreds of thousands of dollars in advertisement and promotion of both Marks on the Internet through its website located at <FRAGRANCENET.COM>.

[a.]

The Disputed Domain Name(s) are nearly identical and confusingly similar to Complainant's Marks.

ii.

iii.

By virtue of its federal trademark and/or service mark registration(s), Complainant is the owner of the Complainant's Mark(s). See, e.g., United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202 ("Panels have long recognized Complainant's registration of a mark with a trademark authority is sufficient to confer rights in the mark pursuant to Policy 4(a)(i)"). It is also important to note that it is irrelevant for the purposes of Policy ¶4(a)(i) whether Complainant registered the mark in the country where Respondent operates or resides. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a complainant can demonstrate rights in a mark in some jurisdiction).

Although the Complainant’s trademarks FRAGRANCENET and FRAGRANCENET.COM, were not registered until after the registration of the Disputed Domain Name(s), the Complainant’s first use in commerce on January 27, 1997, registration of Complainant’s primary website on January 24, 1997 and press releases of the brands prior to the registration of the Disputed Domain Name(s) on January 3, 2005 should be considered in determining prior rights. The Panel should refer to the passage in paragraph 1.4 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions (accessible on the WIPO website), which reads:

“1.4 Does the complainant have UDRP-relevant trademark rights in a mark that was registered, or in which the complainant acquired unregistered rights, after the disputed domain name was registered? The consensus view is that the registration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity. The UDRP makes no specific reference to the date of which the owner of the trade or service mark acquired rights……”, see Madrid 2012, S.A. v. Scott Martin-Madrid Man Websites, WIPO Case No. D2003-0598, <2m12.com> inter alia; Esquire Innovations, Inc. v. Iscrub.com c/o Whois Identity Shield; and Vertical Axis, Inc, Domain Administrator, WIPO Case No. D2007-0856, <iscrub.com>.

In addition to the above, although the Complainant did not have a registered trademark or service mark matching the Disputed Domain Name(s), this fact standing alone is not fatal to a finding of identity or confusing similarity under the Policy. According to paragraph 4(a)(i) of the Policy, common law rights are sufficient to support a domain name complaint. To establish common law rights in a mark, a complainant must show that its mark has acquired secondary meaning, i.e., that the public associates the asserted mark with complainant's goods and services. See First Place Financial Corp. v. Michele Dinoia c/o SZK.com, FA 506772 (Nat. Arb. Forum August 22, 2005). ICANN Panels have found relevant evidence of secondary meaning to include "length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition". Candy Direct, Inc. v. italldirect2u.com, FA 514784 (Nat. Arb. Forum August 22, 2005). It is well settled that the term "trademark or service mark" as used in Paragraph 4(a)(i) encompasses both registered marks and common law marks. See also, e.g., The British Broadcasting Corporation v. Jaime Renteria, WIPO Case No. D2000 0050; United Artists Theatre Circuit, Inc. v. Domains for Sale Inc. WIPO Case No. D2002 0005, The Professional Golfers' Association of America v. Golf Fitness Inc., a/k/a Golf Fitness Association, WIPO Case No. D2001 0218.

iv.

When comparing the Disputed Domain Name(s) to the Complainant's Mark(s), the relevant comparison to be made is between only the second-level portion of the Disputed Domain Name(s) and the Complainant's Mark(s). See Rollerblade, Inc. v. McCrady, WIPO Case No.D2000-0429 (finding that the top-level domain, such as ".net" or ".com", does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., NAF Claim No. FA0304000153545 ("[t]he addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.")

The Disputed Domain Name(s) (is/are) confusingly similar to Complainant's Mark(s) because (it/they) differ(s) by only a single character from Complainant's Mark(s), or because it differs by only the juxtaposition of two characters when compared to Complainant's Mark(s). For clarification, the Disputed Domain Name(s) contain(s) either:

[i.] the addition of one extra character, or...
[ii.] the removal of one character, or...
[iii.] one character which is incorrect, or...
[iv.] two juxtaposed characters

as compared to Complainant's Mark(s).

vi.

The Disputed Domain Name(s) (is/are), simply put, a classic example of "typosquatting". The practice of typosquatting is designed to take advantage of Internet users' typographical errors, which means the names must be confusingly similar by design. See Reuters Ltd. v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); Caterpillar Inc. v. Center for Ban on Drugs, NAF Claim No. FA0603000661437 ("the omission of a single letter from Complainant's mark does not adequately distinguish the Disputed Domain Name from the mark"); and Victoria's Secret v. Zuccarini, NAF Claim No. FA0010000095762 (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).

[b.]

Respondent has no rights or legitimate interests in respect of the Disputed Domain Name(s) for the following reasons:

ii.

iii.

Respondent has not been commonly known by the Disputed Domain Name(s). See Policy, ¶4(c)(ii). See WHOIS record for the Disputed Domain Name(s). Where, as here, "the WHOIS information suggests Respondent is known as" an entity other than the trademark associated with Complainant, and Complainant has not "licensed, authorized, or permitted Respondent to register domain names incorporating Complainant's... mark," a Panel should find that the Respondent is not commonly known by the Disputed Domain Name. United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202.

Respondent is not sponsored by or legitimately affiliated with Complainant in any way.

Complainant has not given Respondent permission to use Complainant's Mark in a domain name.

iv.

A "Cease and Desist" letter was sent to the Respondent. The letter informed the Respondent that it was infringing on Complainant's IP rights and allowed the Respondent the opportunity to respond if they have any IP rights. The Respondent was provided with the information of the Complainant's trademark(s), hence showing proof that the Complainant has rights to the brand(s). To date, no reply has been received from Respondent. 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, WIPO Case No. D2000-0009 (WIPO Feb. 29, 2000("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint."). Also in WIPO case ACCOR v. Pham Manh Ha, Case No. D2007-1855, the panel found that the evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name.

Respondent has ignored Complainant's attempts to resolve the dispute outside of this administrative proceeding. Complainant notes that if the owner of the Disputed Domain Name(s) fails to respond to this Complaint, it is presumed that the owner has no rights or legitimate interests in the Disputed Domain Name(s). See Mattel, Inc. v. RaveClub Berlin, FA106115 (Nat. Arb. Forum May 8, 2002), citing Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents' failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Further, Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) states that when "the complainant has made a prima facie showing, the burden of production shifts to the respondent to show by providing concrete evidence that it has rights to or legitimate interest in the domain name at issue."

vi.

Respondent is using (some or all of) the Disputed Domain Name(s) to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant's business. Presumably, Respondent receives pay-per-click fees from these linked websites. As such, Respondent is not using the Disputed Domain Name(s) to provide a bona fide offering of goods or services as allowed under Policy; 4(c)(i), nor a legitimate noncommercial or fair use as allowed under Policy; 4(c)(iii). See 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent's use of the 24hrsfitness.comgt, 24-hourfitness.com.gt and 24hoursfitness.com.gt, domain names to redirect Internet users to a website featuring advertisements and links to Complainant's competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent's website, which is blank but for links to other websites, is not a legitimate use of the domain names).

vii.	The earliest date on which Respondent registered the Disputed Domain Name(s) was January 3, 2005, which is significantly after Complainant's first use in commerce on January 27, 1997, as specified in their relevant registration with the USPTO.

viii.

The earliest date on which Respondent registered the Disputed Domain Name(s) was January 3, 2005, which is significantly after Complainant's registration of the domain name FRAGRANCENET.COM on January 24, 1997.

[c.]

The Domain Name(s) should be considered as having been registered and being used in bad faith for the following reasons:

Respondent's typosquatting behavior is, in and of itself, evidence of bad faith. See Canadian Tire Corp. v. domain adm'r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent created a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site or location'.. . through Respondent's persistent practice of 'typosquatting'"); see also 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.").

ii.

iii.

Respondent's bad faith is further shown by the Respondent using the Disputed Domain Name(s) website in connection with generating revenue as a "click through" website by using the Complainant's registered trademark(s) and providing links to the services and products offered by the Complainant to take advantage of Complainant's well known mark to achieve a wrongful competitive advantage and commercial gain. In WIPO Decision D2008-1470, AIDA Cruises German Branch of Societa di Crociere Mercurio S.r.l., v. Caribbean Online International Ltd. / BelgiumDomains "the Panel finds that the Respondent registered and is using the disputed domain name for the purposes of commercial gain by offering links to other companies' websites related to cruises and travels, in the form of a "clickthrough" website. In similar cases, many prior panel decisions have recognised [sic] that the registration of domain names to be used in a "click-through" website has to be considered as an evidence of bad faith (see, e.g. Abercrombie & Fitch Trading Co. v. Digi Real Estate Foundation., WIPO Case No. D2007-0440; Early Times Distillers Company v. IP Admin / DNAV ASSOCS, WIPO Case No. D2007-1812; HBOS Plc v. Whois Protection, WIPO Case No. D2007-1605)".

To further stress the above, Respondent’s setting up of a “click through” website for which it likely receives revenue for each misdirected Internet user obviously demonstrates Respondent’s bad faith. The Respondent has registered and used the Disputed Domain Name(s) in bad faith pursuant to Policy ¶4(b)(iv) by using the Disputed Domain Name(s) to attract and mislead consumers for its own profit. See 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).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). See also Meadowbrook, L.L.C. d/b/a The Land of Nod v. Venkateshwara Distributor Private Limited, Claim Number: FA1112001419361 and Charlotte Russe Merchandising, Inc. v. Private Registrations Aktien Gesellschaft / Domain Admin, Claim Number: FA1204001439309, where the same behavior of bad faith is demonstrated and agreed by the panel, pursuant to Policy ¶4(b)(iv).

iv.

In addition to the above, the Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. These links therefore divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. The Panel should find that this effort to divert consumers and disrupt Complainant’s business is evidence of bad faith registration and use under Policy ¶4(b)(iii). See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶4(b)(iii)).

Respondent has caused the website(s) reachable by (some or all of) the Disputed Domain Name(s) to display Complainant's Mark(s) spelled correctly (even though the domain name(s) (is/are) a misspelled version of the same mark(s)). This serves as further evidence of bad faith intent because it removes any doubt as to whether or not the misspelling was intentionally designed to improperly capitalize on Complainant's famous Mark(s).

vi.

Respondent has caused the websites reachable by (some or all of) the Disputed Domain Name(s) to display content and/or keywords directly related to Complainant's business. This serves as further evidence of bad faith intent because it removes any doubt as to whether or not the misspelling was intentionally designed to improperly capitalize on Complainant's famous Mark and its related business.

vii.	Respondent is a recalcitrant, serial cybersquatter / typosquatter. Searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior.

viii.

Respondent holds registrations on other domain names that appear to be straightforward examples of typosquatting. Although those names are not directly involved in this complaint, they serve as further evidence of bad faith intent on the part of Respondent. See Policy, 4(b)(ii) and Time Warner Inc. v. Zone MP3, NAF Claim No. FA0706001008035 (typosquatting combined with registration of as few as four domain names that are identical or confusingly similar to "protected marks" is sufficient to establish a pattern leading to bad faith). See also Citigroup Inc. v. Digi Real Estate Foundation, NAF Claim No. FA0704000964679.

ix.

Respondent's use of apparently aliases, falsified and/or incomplete WHOIS contact information demonstrates a desire to avoid being held accountable, which serves as further evidence of bad faith intent. See, e.g., Time Warner Inc. v. AOLMEMBERS.COM et al., NAF Claim No. FA0701000881337 ("fictitious or false WHOIS information about both the registrant's name and physical address... raises the presumption of bad faith registration and use").

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

(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.

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 Complainant to prove the following three elements to obtain an order cancelling or transferring a domain name:

(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.

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.”).

Preliminary Issue – Multiple Respondents

Complainant claims the entities controlling 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.” Complainant contends Respondent has used these aliases with the bad faith intent of avoiding responsibility for fraudulently profiting from Complainant’s rights in the FRAGRANCENET and FRAGRANCENET.COM marks. Complainant further claims all eight Respondents in this case are also named as respondents in LifeExtension, Inc. v. Alichec Inc., et al., FA 1337664 (Nat. Arb. Forum Sept. 10, 2010), which indicates that they are one in the same Respondent. Another point Complainant addresses is that all of the disputed domain names are typographical errors of Complainant’s FRAGRANCENET.COM mark and they were all registered on January 3, 2005 with GoDaddy.com, LLC. Complainant further points out that the DNS for all eight disputed domain names is “NS1.DSREDIRECTION.” The IP address is the same for all the disputed domain names, namely “204.13.160.107.” The method for monetizing of the parked pages resolving from the disputed domain names are all the same, including the appearance of the resolving websites. Finally, Complainant argues the parking engine for the most of the disputed domain names is provided by DSPARKNG.COM, a service through <oversee.net>.

While this might all be a coincidence, Respondent has chosen not to contradict Complainant.

The Panel finds Complainant has presented sufficient prima facie evidence the disputed domain names are controlled by the same entity and will continue this proceeding.

Identical and/or Confusingly Similar

Complainant claims it has rights in its FRAGRANCENET and FRAGRANCENET.COM marks pursuant to Policy ¶4(a)(i). Complainant has been in the fragrance and beauty business since 1997. Complainant’s previous business name was “Telescents, Inc.” and they merged in 1999 with FragranceNet.com, Inc., changing its name from Telescents, Inc. to FragranceNet.com. Since then, Complainant has spent hundreds of thousands of dollars in advertisement and promotions for both FRAGRANCENET and FRAGRANCENET.COM marks. Complainant presents evidence of its registrations with the United States Patent & Trademark Office (“USPTO”) for its FRAGRANCENET mark (Reg. No. 3,339,343 filed Sept. 19, 2005; registered Nov. 20, 2007) and its FRAGRANCENET.COM mark (Reg. No. 3,559,768 filed Nov. 21, 2007; registered Jan. 13, 2009). Previous panels have found registration with a national trademark authority is sufficient evidence of rights in a mark under Policy ¶4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶4(a)(i).”). This Panel concurs and finds the rights in the FRAGRANCENET marks date back to September 19, 2005, the date of first use mention in Complainant’s trademark application. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that Policy ¶4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). A complainant does not need to register its trademark in respondent’s country to prove complainant’s rights to the 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 has established rights in its FRAGRANCENET and FRAGRANCENET.COM marks pursuant to Policy ¶4(a)(i).

Complainant admits its FRAGRANCENET and FRAGRANCENET.COM marks were registered after the registration of Respondent’s disputed domain names on January 3, 2005. However, Complainant claims it used its FRAGRANCENET and FRAGRANCENET.COM marks in commerce before Respondent’s registration date of January 3, 2005. Complainant provides evidence of its commercial use by providing a Sitoa Global Inc. article highlighting the title stating, “Sinobiomed (d/b/a Sitoa Global) Announces FragranceNet.com Has Signed as Anchor Seller for Fragrance and Skincare on ShopShipUSA.” Complainant provides another magazine article entitled “FragranceNet.com Offers Affordable Luxuries for the Holidays” further indicating Complainant’s media presence. Complainant also provides a press release from 2000 listing Complainant as a key presenter for Beauty Online. Complainant provides more evidence of awards it has won including the 2006 award, “Internet Retailer’s Top 500 Retail Web Sites FragranceNet.com”, and the 2005 award, “Internet Retailer’s Top 400 Guide Leaders of Online Commerce FragranceNet.com.” Complainant further provides multiple articles from a magazines including TIME magazine from 1998 featuring <www.fragrancenet.com> and its products. Complainant goes on to submit multiple articles from 2000 also featuring Complainant’s <www.fragrancenet.com> website. The Panel finds this evidence sufficient to prove Complainant has common law right in the FRAGRANCENET and FRAGRANCENET.COM marks. See Mary’s Futons, Inc. v. Tex. Int’l Prop. Assocs., FA 1012059 (Nat. Arb. Forum Aug. 13, 2007) (“A common law trademark must be shown by evidence such as sales figures, advertising expenditure, [and] numbers of customers.”).

Complainant contends the <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com> domain names are confusingly similar to Complainant’s FRAGRANCENET and FRAGRANCENET.COM marks. Complainant argues the disputed domain names either add an additional letter, reverse the order of a letter, or misspell Complainant’s mark. The <ffragrancenet.com>, <fragraancenet.com> and <fragranncenet.com> domain names all add an extra letter when compared to the FRAGRANCENET and FRAGRANCENET.COM marks. The <fargrancenet.com>, <fragranceent.com>, <fragranceent.com> and <frgarancenet.com> domain names all reverse the order of a letter when compared to Complainant’s FRAGRANCENET and FRAGRANCENET.COM marks. The <fragrancenat.com> domain name is spelled incorrectly and replaces the “e” in NET with the letter “a.” Previous panels have found such variations are insufficient to differentiate a disputed domain name from a registered mark. 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 Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to the complainant’s mark, ICQ). Based on this evidence, the Panel finds the <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com> domain names are confusingly similar to Complainant’s FRAGRANCENET and FRAGRANCENET.COM marks under Policy ¶4(a)(i).

The Panel finds Policy ¶4(a)(i) satisfied.

Rights or Legitimate Interests

Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

Complainant argues Respondent has never been commonly known by the <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com> domain names based on the WHOIS information. The WHOIS information for the disputed domain names list eight different registrants, a different one for each disputed domain name, none of which appear to directly reference the associated disputed domain name. Based on this analysis, the Panel finds there is no connection between Respondent and the <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com> domain names. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names under 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 claims Respondent has no rights or legitimate interest in the <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com> domain names because it does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use with the domain names. Respondent is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which compete with Complainant’s business. Respondent receives pay-per-click fees from the links present on the resolving webpages. All the disputed domain names resolve to a page featuring links to Complainant’s business. The resolving websites contain competing links such as “ALFRED SUNG PERFUME,” “DISCOUNT PERFUME,” “PERFUMANIA OFFICIAL SITE,” “TOM FORD PERFUME,” “PHEROMAX PERFUME, “ESCADA PERFUME FOR WOMEN,” and “Perfume.” The <fragranceent.com> domain name resolves to a page featuring a link to Complainant’s website as well as other unrelated links. Based on this evidence, the Panel finds Respondent’s use to redirect Internet users to a website featuring generic and competing links while collecting pay-per-click fees is not a bona fide offering of goods or services under Policy ¶4(c)(i) or legitimate noncommercial or fair use of the disputed domain names under Policy ¶4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant).

The Panel finds Policy ¶4(a)(ii) satisfied.

Registration and Use in Bad Faith

Complainant contends Respondent is a serial typosquatter. Complainant provides previous UDRP cases indicating Respondent has engaged in an ongoing pattern of typosquatting. Complainant also claims Respondent holds registrations on other domain names, not involved with this case, that appear to be straight forward examples of typosquatting. All of that may be so. However, the UDRP does not provide “typosquatting” as a sufficient ground for finding bad faith. Complainant does not claim Respondent uses the domain name to create a likelihood of confusion with a complainant’s mark as to source, sponsorship, affiliation, or endorsement of the respondent’s web site through a misspelling or variations of a complainant’s mark (a material omission because such a claim would be sufficient). Likewise, the fact a respondent is a repeat offender is not sufficient (by itself) to find bad faith.

Complainant claims Respondent’s advertised pay-per-click links divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. This is a UDRP enumerated ground for finding bad faith. Attempts to divert consumers and disrupt a complainant’s business is evidence of bad faith registration and use under Policy ¶4(b)(iii). Based upon this uncontroverted claim, the Panel finds Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶4(b)(iii).”).

Complainant argues Respondent is intentionally misdirecting Internet users to attract and mislead consumers for its own profit. Complainant claims Respondent is using confusingly similar domain names to attract Internet users to Respondent’s resolving websites featuring numerous pay-per-click links, some of which compete with Complainant. Previous panels have found bad faith registration and use under Policy ¶4(b)(iv) when a respondent registers a confusingly similar domain name containing Complainant’s mark in order to attract consumers to a website offering links to competing third party websites in order to profit from those links. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); 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)). This Panel concurs and finds Respondent has registered and is using the disputed domain names in bad faith pursuant to Policy ¶4(b)(iv).

The Panel finds Policy ¶4(a)(iii) satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered the <fargrancenet.com>, <ffragrancenet.com>, <fraagrancenet.com>, <fragraancenet.com>, <fragranceent.com>, <fragrancenat.com>, <fragranncenet.com>, and <frgarancenet.com> domain names be TRANSFERRED from Respondent to Complainant.

Houston Putnam Lowry, Chartered Arbitrator, Panelist

Dated: Thursday, December 6, 2012