Campmor, Inc. v. GearPro.com
Claim
Number: FA0309000197972
Complainant is Campmor, Inc., Upper Saddle River, NJ
(“Complainant”) represented by Timothy
W. Blakely, of Brann & Isaacson, 184 Main Street, PO Box 3070, Lewiston, ME. Respondent is GearPro.com, 800 East Reelfoot Ave., Union City, TN 38261
(“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <campmore.com>, registered with Network
Solutions, Inc.
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.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on September 23, 2003; the Forum received a hard copy of the
Complaint on September 26, 2003.
On
September 26, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum
that the domain name <campmore.com> is registered with Network
Solutions, Inc. and that Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
Inc. registration agreement and has thereby agreed to resolve domain-name
disputes brought by third parties in accordance with ICANN's Uniform Domain
Name Dispute Resolution Policy (the "Policy").
On
September 26, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of October 16, 2003 by which Respondent could file a Response to the
Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical, administrative
and billing contacts, and to postmaster@campmore.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
October 28, 2003, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the Forum appointed the Honorable Charles K.
McCotter, Jr. (Ret.) as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the 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."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <campmore.com>
domain name is confusingly similar to Complainant’s CAMPMOR mark.
2. Respondent does not have any rights or
legitimate interests in the <campmore.com> domain name.
3. Respondent registered and used the <campmore.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
holds three federal trademarks relating to its sporting goods and outdoor
products company. For example, on May
2, 1995, Complainant registered the mark, CAMPMOR (Reg. No. 1892208), with the
United States Patent and Trademark Office.
Campmor has continually used the CAMPMOR mark in commerce since
1983. Additionally, Campmor conducts
business through its own website located at <campmor.com>.
In early 1998,
Complainant became aware of the fact that the domain name <campmore.com>
had been registered by a Casey Smith, then working for a competitor of
Complainant, The Outdoor Experience, which also dealt in goods relating to
outdoor activities. Casey Smith
remained the administrative contact for the disputed domain name when it was
updated on September 18, 2002, but the registrant company name had been changed
from The Outdoor Experience to GearPro.com.
In 2002, Complainant became aware of the fact that the website attached
to the domain name contained the following message: “This domain name is for sale or lease. Please submit reasonable offers here.” “Here” served as a hyperlink permitting offers to be submitted
via email. On December 3, 2002,
Complainant requested a purchase price for the registration of the domain name
from Respondent. Respondent replied
with a list price for the domain name of $10,600. Complainant refused the offer.
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.
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 has
demonstrated rights in the CAMPMOR mark through registration with the United
States Patent and Trademark Office and continuous use in commerce since 1983.
In this case,
the domain name <campmore.com> incorporates the entire CAMPMOR
mark and simply adds an “e” to the end of the mark, resulting in a probable
misspelling of the mark. It is
established that a domain name is confusingly similar to a registered mark if
the name differs only slightly or includes a mere misspelling of a registered
mark in which the Complainant has rights.
See Kostritzer
Schwarzierbrauerei v. Macros-Telekom Corp., D2001-0936 (WIPO, Dec. 18, 2001) (finding domain name
<koestritzer.com> confusingly similar to KOSTRITZER mark because it only
added an “e” to the mark); see
also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18,
2000) (finding that, by misspelling words and adding letters to words, a
Respondent does not create a distinct mark but nevertheless renders the domain
name confusingly similar to Complainant’s marks); see also State Farm Mut. Auto. Ins. Co. v. Try Harder
& Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the
domain name <statfarm.com> is confusingly similar to Complainant’s STATE
FARM mark).
Moreover, the
domain name <campmore.com> is phonetically identical to
Complainant’s mark CAMPMOR. It has been
established that the identical nature of a domain name’s pronunciation with a
registered mark is sufficient to satisfy ¶ 4(a)(i). See Hewlett-Packard
Co. v. Cupcake City, FA 93562 (Nat. Arb. Forum Apr. 7, 2000) (finding that
a domain name which is phonetically identical to Complainant’s mark satisfies ¶
4(a)(i) of the Policy); see also YAHOO!
Inc. v. Murray, D2000-1013 (WIPO Nov. 17, 2000) (finding that the domain
name <yawho.com> is confusingly similar to Complainant’s YAHOO mark).
Therefore,
Complainant has shown the domain name <campmore.com> to be
confusingly similar to Respondent’s mark CAMPMOR, conforming to Policy ¶
4(a)(i).
Complainant has
asserted that Respondent lacks rights or legitimate interests in the domain
name <campmore.com>.
Therefore, this Panel is free to infer that Respondent lacks rights or
legitimate interests because Respondent has failed to respond to the
Complaint. See Do the Hustle, LLC v.
Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to
come forward to [contest complainant’s allegations] is tantamount to admitting
the truth of complainant’s assertion in this regard”); see also Charles Jourdan Holding AG v. AAIM,
D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw
adverse inferences from Respondent’s failure to reply to the Complaint).
No evidence
exists in the record to show that Respondent was commonly known by <campmore.com>,
pursuant to Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that
Respondent does not have rights in a domain name when Respondent is not known
by the mark); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum
May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that
one has been commonly known by the domain name prior to registration of the
domain name to prevail").
Furthermore,
Respondent is currently using the disputed domain to host a hyperlink
permitting resale offers to be submitted via e-mail. Respondent also attempted to sell the domain name registration to
Complainant for $10,600. Thus, the
attempted sale of a domain name registration, which is confusingly similar to
that of Complainant’s registered mark, is evidence of the lack of rights or
legitimate interests. See Am. Nat’l Red Cross v. Domains a/k/a Best Domains
a/k/a John Barry, FA 143684 (Nat. Arb. Forum, Mar. 4, 2003) (“Respondent’s lack of rights and legitimate
interests in the domain name is further evidenced by Respondent’s attempt to
sell its domain name registration to Complainant, the rightful holder of the
RED CROSS mark”); see also Nat’l Press Club v. High Traffic Domains, Inc., FA154113
(Nat. Arb. Forum, June 2, 2003) (“Respondent’s current use of the domain name,
purporting to offer the registration for sale, does not evidence a legitimate
noncommercial or fair use of the domain name”).
Therefore,
Complainant has shown Respondent to be without rights or legitimate interests
conforming to Policy ¶ 4(a)(ii).
Respondent
registered the disputed domain name and offered to sell it to Complainant for
$10,600. This demonstrates bad faith
registration and use pursuant to Policy ¶ 4(b)(i). See Matmut v. Tweed,
D2000-1183 (WIPO Nov. 27, 2000) (finding bad faith under Policy paragraph
4(b)(i) where Respondent stated in communication with Complainant, “if you are
interested in buying this domain name, we would be ready to sell it for
$10,000”); see also Grundfos A/S
v. Lokale, D2000-1347 (WIPO Nov. 27, 2000) (finding that a failure to use
the domain name in any context other than to offer it for sale to Complainant
amounts to a use of the domain name in bad faith); see also World Wrestling Fed’n Entmt., Inc. v. Bosman,
D99-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the domain name in
bad faith because he offered to sell the domain name for valuable consideration
in excess of any out-of-pocket costs).
Furthermore, it
appears Respondent is a competitor of Complainant. Registration and use of the domain name under the circumstances
demonstrates bad faith under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding Respondent acted in bad faith by attracting
Internet users to a website that competes with Complainant’s business); see
also EthnicGrocer.com, Inc. v.
Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000)
(finding that the minor degree of variation from Complainant's marks suggests
that Respondent, Complainant’s competitor, registered the names primarily for
the purpose of disrupting Complainant's business).
Therefore,
Complainant has shown Respondent to have registered and used the domain name in
bad faith conforming to 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 <campmore.com> domain name be TRANSFERRED
from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated:
November 5, 2003
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