Guitar Center, Inc. v. Above.com Domain Privacy / Above.com Legal
Claim Number: FA1307001512059
Complainant is Guitar Center, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy / Above.com Legal (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com>, registered with Above.Com Pty Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 29, 2013; the National Arbitration Forum received payment on July 30, 2013.
On August 2, 2013, Above.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <cuitarcenter.com>, <gaitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names are registered with Above.Com Pty Ltd and that Respondent is the current registrant of the names. On November 26, 2013, Above.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <gauitarcenter.com> domain name is registered with Above.Com Pty Ltd and that Respondent is the current registrant of the name. Above.Com Pty Ltd has verified that Respondent is bound by the Above.Com Pty Ltd 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 December 9, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 2013 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@cuitarcenter.com, postmaster@gaitarcenter.com, postmaster@gauitarcenter.com, postmaster@guitaecenter.com, postmaster@guitarceenter.com, postmaster@guitarceneter.com, postmaster@guitarcenterl.com, postmaster@guitarcentert.com, postmaster@guitorcenter.com, postmaster@guityarcenter.com, postmaster@mguitarcenter.com, postmaster@musice123.com, postmaster@musichiansfriend.com, postmaster@musicianasfriend.com, postmaster@musiciancfriend.com, postmaster@musiciancsfriend.com, and postmaster@musiciansfrienc.com. Also on December 9, 2013, 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 January 3, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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
a. Complainant, Guitar Center, Inc., is the world’s largest retailers of musical instruments, pro audio, and recording equipment.
b. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the GUITAR CENTER mark (e.g., Reg. No. 1,290,481, registered August 14, 1984); for the MUSIC123.COM mark (Reg. No. 2,387,979, registered September 19, 2000); and for the MUSICIAN’S FRIEND mark (e.g., Reg. No. 1,812,560, registered December 21, 1993).
c. The disputed domain names are confusingly similar to Complainant’s marks because they differ by only a single character from Complainant’s marks.
d. Respondent has no rights or legitimate interests in respect of the disputed domain names.
i. Respondent has not been commonly known by the disputed domain names.
ii. Respondent is using the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
iii. Respondent is using the <guitorcenter.com> domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program, which is in direct violation of the affiliate agreement which governs Respondent’s relationship as an affiliate of Complainant.
e. The domain names should be considered as having been registered and being used in bad faith.
i. Respondent has listed the <guitaecenter.com> and <musice123.com> domain names for sale.
ii. Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant.
iii. Respondent has registered and used the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names to attract and mislead consumers for its own profit.
iv. Respondent is using the <guitorcenter.com> domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program, which is in direct violation of the affiliate agreement which governs Respondent’s relationship as an affiliate of Complainant.
v. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Guitar Center Inc., of Westlake Village, CA, USA. Complainant owns the mark GUITAR CENTER which it states it first used in 1965 for retail musical instrument sales and services and which it has continuously since that time. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the GUITAR CENTER mark (e.g., Reg. No. 1,290,481, registered August 14, 1984); for the MUSIC123.COM mark (Reg. No. 2,387,979, registered September 19, 2000); and for the MUSICIAN’S FRIEND mark (e.g., Reg. No. 1,812,560, registered December 21, 1993). Complainant states that it operates hundreds of retail stores as well as engages in e-commerce from its many websites, including <guitarcenter.com>.
Respondent is Above.com Domain Privacy/Above.com Legal of Victoria, Australia. Respondent’s registrar’s address is also listed as Victoria, Australia.
Respondent registered the disputed domain names on or about the following dates:
i. <cuitarcenter.com> on October 14, 2011;
ii. <gaitarcenter.com> on July 14, 2006;
iii. <gauitarcenter.com> on April 27, 2008;
iv. <guitaecenter.com> on May 21, 2012;
v. <guitarceenter.com> on September 14, 2012;
vi. <guitarceneter.com> on March 8, 2012;
vii. <guitarcenterl.com> on September 4, 2012;
viii. <guitarcentert.com> on May 21, 2012;
ix. <guitorcenter.com> on September 21, 2008;
x. <guityarcenter.com> on May 21, 2012;
xi. <mguitarcenter.com> on February 7, 2012;
xii. <musice123.com> on August 21, 2012;
xiii. <musichiansfriend.com> on February 13, 2012;
xiv. <musicianasfriend.com> on March 14, 2009;
xv. <musiciancfriend.com> on April 11, 2012;
xvi. <musiciancsfriend.com> on September 6, 2009;
xvii. <musiciansfrienc.com> on September 6, 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."
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.
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 it is the world’s largest retailer of musical instruments, pro audio, and recording equipment. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the GUITAR CENTER mark (e.g., Reg. No. 1,290,481, registered August 14, 1984); for the MUSIC123.COM mark (Reg. No. 2,387,979, registered September 19, 2000); and for the MUSICIAN’S FRIEND mark (e.g., Reg. No. 1,812,560, registered December 21, 1993). See Complainant’s Exhibit E. The Panel notes that while Respondent appears to reside and operate in Australia, Policy ¶ 4(a)(i) does not require that Complainant register its mark in the country in which Respondent resides, so long as it can establish rights in some jurisdiction. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel finds that Complainant’s registration of the GUITAR CENTER, MUSIC123.COM, and MUSICIAN’S FRIEND marks with the USPTO sufficiently evidence its rights in the marks according to Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, and <mguitarcenter.com> domain names are confusingly similar to Complainant’s GUITAR CENTER mark because they differ by only a single character from Complainant’s mark. The Panel notes that Respondent substitutes one letter of Complainant’s mark for another in its <cuitarcenter.com>, <gaitarcenter.com>, <guitaecenter.com>, and <guitorcenter.com> domain names. The Panel finds that Respondent’s substitution of letters in a mark does not distinguish the domain names from Complainant’s mark under 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”). The Panel further notes that Respondent adds an additional letter to the <gauitarcenter.com>, <guitarceenter.com>, <guitarceneter.com>,<guitarcenterl.com>, <guitarcentert.com>, <guityarcenter.com>, and <mguitarcenter.com> domain names. The Panel finds that Respondent’s inclusion of additional letters does not negate a finding of confusing similarity between the domain names and Complainant’s GUITAR CENTER mark under Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). The Panel also notes that Respondent omits the space in Complainant’s GUITAR CENTER mark and adds the generic top-level domain name (“gTLD”) “.com” to its <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, and <mguitarcenter.com> domain names. The Panel finds that Respondent’s elimination of spaces and inclusion of a gTLD is irrelevant under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). The Panel holds that Respondent’s <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, and <mguitarcenter.com> domain names are confusingly similar to Complainant’s GUITAR CENTER mark pursuant to Policy ¶ 4(a)(i).
Complainant asserts that Respondent’s <musice123.com> domain name is confusingly similar to Complainant’s MUSIC123.COM mark because it differs by only a single character from Complainant’s mark. The Panel notes that Respondent adds the letter “e” to Complainant’s mark in the disputed domain name. The Panel also notes that Respondent’s addition of letters to Complainant’s mark is inconsequential to a Policy ¶ 4(a)(i) determination. See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). The Panel further notes that the addition of the gTLD is irrelevant. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel holds that Respondent’s <musice123.com> domain name is confusingly similar to Complainant’s MUSIC123.COM mark according to Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names are confusingly similar to Complainant’s MUSICIAN’S FRIEND mark because they differ by only a single character from Complainant’s marks. The Panel notes that Respondent includes an additional character in its <musichiansfriend.com>, <musicianasfriend.com>, and <musiciancsfriend.com> domain names. The Panel again notes that Respondent’s inclusion of additional letters to Complainant’s mark does not prevent a panel from finding confusing similarity under Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). The Panel also notes that Respondent substitutes letters in Complainant’s MUSICIAN’S FRIEND mark in its <musiciancfriend.com> and <musiciansfrienc.com> domain names. In Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001), the panel found 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.” The Panel again finds that Respondent’s substitution of letters in Complainant’s mark is irrelevant to a Policy ¶ 4(a)(i) analysis. The Panel notes that Respondent removes the apostrophe and space in Complainant’s mark and adds the gTLD “.com.” The Panel finds that Respondent’s removal of punctuation and spaces and addition of a gTLD is inconsequential to Policy ¶ 4(a)(i). See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”). Accordingly, the Panel holds that Respondent’s <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names are confusingly similar to Complainant’s MUSICIAN’S FRIEND mark under Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have 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). The Complainant has met this burden.
Complainant argues that Respondent has not been commonly known by the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names. Complainant alleges that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant claims that it has not given Respondent permission to use Complainant’s mark in a domain name. The Panel notes that the WHOIS record lists “Above.com Domain Privacy / Above.com Legal” as the registrant of the disputed domain names. See Complainant’s Exhibit I. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel concluded that 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 respondent was commonly known by the domain names, and complainant had not authorized respondent to register a domain name containing its registered mark. The Panel here finds that Respondent is not commonly known by the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names pursuant to Policy ¶ 4(c)(ii).
Complainant asserts that Respondent is using the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that the above-mentioned domain names resolve to competing hyperlink directories, listing links such as “American Musical Supply,” “Music Producers,” “Guitar Center Official,” and others. See Complainant’s Exhibit H. The Panel finds that Respondent is not using the disputed domain names in connection with a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Complainant claims that Respondent is using the <guitorcenter.com> domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program, which is in direct violation of the affiliate agreement which governs Respondent’s relationship as an affiliate of Complainant. The Panel notes that Respondent’s <guitorcenter.com> domain name resolves to Complainant’s own website. See Complainant’s Exhibit H. Previous panels have concluded that a respondent’s use of a domain name to resolve to a complainant’s own website in violation of its affiliate program is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the respondent’s use of the disputed domain names to divert Internet users attempting to reach the complainant’s website and in breach of the complainant’s affiliate program is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)). The Panel here notes that while Complainant provides a copy of its affiliate agreement, there is no evidence suggesting that Respondent has assented to this agreement through any authenticated writing or other record. The Panel finds that Respondent is not using the <guitorcenter.com> domain name for a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant contends that Respondent has listed the <guitaecenter.com> and <musice123.com> domain names for sale. The Panel notes that the WHOIS information for the above-mentioned domain names states “The owner of the domain you are researching has listed it for sale.” See Complainant’s Exhibit I. The Panel finds that Respondent has registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Complainant asserts that Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. The Panel notes that Respondent’s <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names resolve to websites displaying competing hyperlinks titled “Used Guitars,” “Music Instruments Store,” “Acoustic Guitar Shops,” and others. See Complainant’s Exhibit H. In Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008), the panel determined that “Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).” The Panel here finds that Respondent’s use of the disputed domain names disrupts Complainant’s business, demonstrating bad faith use and registration under Policy ¶ 4(b)(iii).
Complainant argues that Respondent has registered and used the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names to attract and mislead consumers for its own profit. The Panel notes that Respondent’s disputed domain names lead to websites containing links for competitors of Complainant, such as “Musician’s Friend Coupon,” “Guitar,” “Guitar Center Sale,” and more. See Complainant’s Exhibit H. Complainant contends that Respondent is using the disputed domain names in connection with generating revenue as a “click through” website, which provides links to the services and products offered by Complainant to take advantage of Complainant’s well-known marks to achieve a wrongful competitive advantage and commercial gain. In Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), the panel held that “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 here finds that Respondent’s use of the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names is in bad faith under Policy ¶ 4(b)(iv).
Complainant alleges that Respondent is using the <guitorcenter.com> domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program, which is in direct violation of the affiliate agreement which governs Respondent’s relationship as an affiliate of Complainant. See Complainant’s Exhibit H. Complainant argues that as a member of Complainant’s affiliate program, Respondent has attempted to opportunistically benefit from its registration and use of the disputed domain name at Complainant’s expense. Prior panels have determined that a respondent’s use of a domain name to resolve to complainant’s website in violation of an affiliate program proves bad faith use and registration under Policy ¶ 4(b)(iv). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program). The Panel here finds that Respondent has registered and is using the <guitorcenter.com> domain name under Policy ¶ 4(b)(iv).
Complainant asserts that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Panel notes that Respondent includes Complainant’s GUITAR CENTER, MUSIC123.COM, or MUSICIAN’S FRIEND marks and merely changes the marks to create a typographical error. The Panel further notes that previous panels have traditionally found typosquatting where there is a disputed domain name representing a typographical error with respect to a complainant’s mark or correlation between an incorrect letter found in the disputed domain name and its placement on a computer keyboard near the correct letter as found in the complainant’s mark. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> 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 here finds that Respondent has engaged in typosquatting, further supporting inferences of bad faith under Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <cuitarcenter.com>, <gaitarcenter.com>, <gauitarcenter.com>, <guitaecenter.com>, <guitarceenter.com>, <guitarceneter.com>, <guitarcenterl.com>, <guitarcentert.com>, <guitorcenter.com>, <guityarcenter.com>, <mguitarcenter.com>, <musice123.com>, <musichiansfriend.com>, <musicianasfriend.com>, <musiciancfriend.com>, <musiciancsfriend.com>, and <musiciansfrienc.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 17, 2014
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