Cost Plus Management Services, Inc. v. Abedellatif Shatila / SHATILA E-COMMERCE
Claim Number: FA1607001684051
Complainant is Cost Plus Management Services, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Abedellatif Shatila / SHATILA E-COMMERCE (“Respondent”), Lebanon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <worlmarket.com>, registered with DropCatch.com 536 LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 15, 2016; the Forum received payment on July 15, 2016.
On September 15, 2016, DropCatch.com 536 LLC confirmed by e-mail to the Forum that the <worlmarket.com> domain name is registered with DropCatch.com 536 LLC and that Respondent is the current registrant of the name. DropCatch.com 536 LLC has verified that Respondent is bound by the DropCatch.com 536 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 September 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 6, 2016 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@worlmarket.com. Also on September 16, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On October 12, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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" 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 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
Complainant states that it is a unique retailer selling a wide range of home furnishings, décor and food products, including furniture, curtains, rugs, gifts, apparel, coffee, wine, craft beer, home décor, handcrafted goods from more than 50 global destinations. Over time, Complainant’s activity grew to more than 250 retail locations across the US. In 1996, it went public and reported quarterly earnings of $125 million with $367 million in revenue for the 4th fiscal quarter of 2006. It continued to open new locations throughout the United States and has a robust online presence at <www.worldmarket.com>. With over 6,000 employees and 250+ locations, Complainant has become one of the leading direct-import retailers in the United States. The company enjoys widespread consumer recognition and has spent millions of dollars adverting and promoting the WORLD MARKET brand including significant promotion via social media, online channels, and through its website. Complainant registered its WORLD MARKET mark in the USA in 2000.
According to Complainant, the disputed domain name is confusingly similar to its mark as it is a common misspelling of the WORLD MARKET mark and merely omits the “D” and the space from the mark, while adding a generic top-level domain (“gTLD”).
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its WORLD MARKET mark, and Respondent is not commonly known by the disputed domain name. Respondent is using the domain name to resolve to a website featuring pay-per-click hyperlinks that compete with Complainant’s business. Such use cannot be considered a bona fide offering of goods and services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. Respondent has engaged in a pattern of bad faith registration and use and has numerous UDRP decisions against him. Respondent intended to disrupt Complainant’s business by registering the domain name, and is commercially gaining from referring confused Internet users to third-party sites. All of this stems from Respondent’s typosquatting on a domain name that is a common misspelling of Complainant’s famous WORLD MARKET mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark WORLD MARKET and uses it to market its business as a retailer selling a wide range of home furnishings, décor and food products from around the world.
Complainant’s rights in its mark date back to 2000.
The disputed domain name was registered in 2005.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website featuring pay-per-click hyperlinks that compete with Complainant’s business.
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(f), 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 (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.”).
The disputed domain name is confusingly similar to Complainant’s WORLD MARKET mark because it merely omits the “D” in Complainant’s WORLD MARKET mark. Prior panels have commonly found that a misspelling of a Complainant’s mark, such as the omission of a letter and space plus a gTLD, is confusingly similar under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that the domain names <beanybaby.com>, <beaniesbabies.com>, <beanybabies.com> are confusingly similar to the complainant’s mark BEANIE BABIES).
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its WORLD MARKET mark in any fashion, and Respondent is not commonly known by the disputed domain name. The Panel notes the WHOIS information lists the registrant of the domain name as “Abedellatif Shatila” with the “SHATILA E-COMMERCE” organization. Panels have found that a respondent is not commonly known by a domain name based on the WHOIS information and lack of contradicting evidence in the record. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). The Panel may thus find that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent is not using the disputed domain name to make a bona fide offering of goods and services or for a legitimate noncommercial use under Policy ¶¶ 4(c)(i) and (iii). The disputed domain name resolves to a page that offers pay-per-click hyperlinks, many of which compete with Complainant’s business of selling furniture. Panels have held that offering hyperlinks on a disputed domain name that compete with a complainant’s business does not confer any rights or legitimate interests. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). Thus, the Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods and services or a legitimate noncommercial or fair use.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Further, Respondent has a pattern of typosquatting behavior, and there have been multiple UDRP decisions against Respondent. Previous panels have used prior UDRP decisions to find that a respondent has engaged in a pattern of bad faith under Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Thus, the Panel finds that Respondent has operated in bad faith in violation of Policy ¶ 4(b)(ii).
As noted above, Respondent’s website at the disputed domain name contains competing hyperlinks. Thus Complainant’s customers are being diverted to third-party hyperlinks. Previous panels have defined “competitor” broadly, and held that offering competing hyperlinks does violate Policy ¶ 4(b)(iii). See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); see also Lenovo (Beijing) Limited Corporation China v. jeonggon seo, FA1411001591638 (Forum Jan. 16, 2015) (finding that where the complainant operated in the computer industry and the respondent used the disputed domain name to offer competing computer related links, the respondent was disrupting the complainant’s business offerings in violation of Policy ¶ 4(b)(iii)). Accordingly, the Panel finds that Respondent’s use of the disputed domain name is in violation of Policy ¶ 4(b)(iii).
Further, Respondent is attempting to commercially gain by attracting Internet users to its website by confusing it with Complainant. Respondent presumably receives click-through revenue for redirecting Internet users to third-party websites. This practice is in bad faith due to Respondent capitalizing on the goodwill of Complainant’s WORLD MARKET mark by taking advantage of Internet users who make typographical errors. Panels have held that hosting of competing hyperlinks is a violation of Policy ¶ 4(b)(iv). See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Therefore, the Panel finds that Respondent is attempting to financially benefit through creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of its domain name, and thus is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Lastly, Respondent’s has engaged in typosquatting in violation of Policy ¶ 4(a)(iii). Respondent has merely omitted the “D” and the space from Complainant’s WORLD MARKET mark. Panels have agreed that a website that is only changing or juxtaposing a letter or two of a complainant’s entire mark constitutes typosquatting. See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”); see also Finish Line, Inc. and its subsidiary Spike’s Holdings, Inc. v. XU SHUAI WEI / XUSHUAIWEI, FA1409001577968 (Forum Oct. 9, 2014) (“The <finishlne.com> domain name is a typosquatted version of the FINISH LINE mark, which further supports a finding of bad faith under Policy ¶ 4(a)(iii).”). Therefore, the Panel finds bad faith under 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 <worlmarket.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 13, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page