Claim Number: FA0812001236884
Complainant is
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwlasvegasmarket.com>, registered with Capitoldomains, LLC.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 3, 2008; the National Arbitration Forum received a hard copy of the Complaint on December 4, 2008.
On December 5, 2008, Capitoldomains, LLC confirmed by e-mail to the National Arbitration Forum that the <wwwlasvegasmarket.com> domain name is registered with Capitoldomains, LLC and that Respondent is the current registrant of the name. Capitoldomains, LLC has verified that Respondent is bound by the Capitoldomains, LLC 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 December 8, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 29, 2008 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@wwwlasvegasmarket.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2009 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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." 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wwwlasvegasmarket.com> domain name is confusingly similar to Complainant’s LAS VEGAS MARKET mark.
2. Respondent does not have any rights or legitimate interests in the <wwwlasvegasmarket.com> domain name.
3. Respondent registered and used the <wwwlasvegasmarket.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, World Market Center Venture, LLC, is a limited
liability company based in
Respondent registered the disputed <wwwlasvegasmarket.com> domain name on June 5, 2006. The disputed domain name does not resolve to any active web page.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant has submitted evidence that it registered its LAS VEGAS MARKET mark with the USPTO. The Panel finds that Complainant therefore has sufficient rights in the mark, and that such rights date back to the mark’s filing date. See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date).
Respondent’s disputed <wwwlasvegasmarket.com>
domain name differs from Complainant’s LAS VEGAS MARKET mark in the following
ways: (1) the spaces between the words of the mark have been removed; (2) the
generic top-level domain “.com” has been added; and (3) the prefix “www” has
been added. The Panel finds that the
removal of spaces and addition of a top-level domain fail to constitute
meaningful distinctions under Policy ¶ 4(a)(i) as
these alterations are irrelevant. 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).”). Moreover, the
addition of the prefix “www” likewise fails to render the disputed domain name
sufficiently distinct, as the dominant portion of the disputed domain name remains
Complainant’s mark. See Dana Corp. v. $$$ This
Domain Name Is For
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must 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 interest in the subject domain names.”); see also 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 Policy ¶ 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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
Respondent is listed in the WHOIS information as “Furniture Mart Enterprises, LLC.” Moreover, Complainant contends that Respondent is not commonly known by the disputed domain name and that Respondent lacks the authority to use Complainant’s mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent’s disputed domain name does not resolve to an active web page. The Panel notes that Respondent has owned the disputed domain name for over two years. The Panel therefore finds that Respondent has failed to make actual use or demonstrable preparations to the use the disputed domain name in a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [inactive] holding of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”); see also Am. Home Prods. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where the respondent merely inactively held the domain name).
Complainant has asserted that Respondent engaged in typosquatting. This refers to the practice of registering a disputed domain name that includes common typographical errors in order to divert unsuspecting Internet users to Respondent’s own website. One common method of typosquatting fits the instant dispute: namely the addition of the prefix “www.” This prefix inclusion targets Internet users that omit the period between the prefix and the remainder of the domain name. Therefore, the Panel considers Respondent’s engagement in typosquatting to constitute additional evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Amazon.com, Inc. v. J J Domains, FA 514939 (Nat. Arb. Forum Sept. 2 2005) (“Respondent lacks rights and legitimate interests in the <www-amazon.com> domain name because Respondent's addition of the prefix "www-" to Complainant's AMAZON.COM mark constitutes typosquatting.”); see also Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis-á-vis the complainant).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that it is permitted to consider the
totality of the circumstances when conducting its Policy ¶ 4(a)(iii) bad faith analysis, and that it is not limited to the
enumerated factors in Policy ¶ 4(b). See Twentieth Century Fox
Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (“The
requirement in the ICANN Policy that a complainant prove that domain names are
being used in bad faith does not require that it prove in every instance that a
respondent is taking positive action. Use in bad faith can be inferred from the
totality of the circumstances even when the registrant has done nothing more
than register the names.”).
Respondent’s disputed domain name does not resolve to an active web page. The Panel therefore considers Respondent to have engaged in bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that inactive holding of a domain name permits an inference of registration and use in bad faith); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).
Moreover, Respondent has engaged in typosquatting through
the inclusion of the prefix “www” in the confusing similar disputed domain
name. This constitutes sufficient
additional evidence of Respondent’s bad faith registration and use under Policy
¶ 4(a)(iii). See
Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June
23, 2003) (finding that the respondent engaged in typosquatting, which is
evidence of bad faith registration and use under Policy ¶ 4(a)(iii));
see also Black & Decker Corp. v. Khan, FA 137223 (Nat.
Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was
registered to “ensnare those individuals who forget to type the period after
the ‘www’ portion of [a] web-address,” which was evidence that the domain name
was registered and used in bad faith).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwlasvegasmarket.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: January 21, 2009
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