Bose Corporation v. DN4Ever
Claim Number: FA0611000842094
Complainant is Bose Corporation (“Complainant”), represented by Christopher
Finnerty, of Wolf, Block, Schorr & Solis-Cohen LLP,
One Boston Place, Floor 40, Boston, MA 02108. Respondent is DN4Ever (“Respondent”), 19
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwbose.com>, registered with Onlinenic, Inc.
The undersigned certifies that he or she 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On November 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 11, 2006 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@wwwbose.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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:
Complainant manufactures and sells sound systems under the BOSE mark, including speakers, transducers, amplifiers, inverters, and radios.
Complainant has continuously used the BOSE mark in connection with these products since 1966.
Complainant maintains a website at the <bose.com> domain name.
Complainant holds numerous trademark registrations with the
United States Patent and Trademark Office (“USPTO”) for the BOSE mark
(including Reg. No. 829,402, issued
Respondent’s <wwwbose.com> domain name, which
it registered on
Respondent profits from this unauthorized activity.
Respondent’s <wwwbose.com> domain name is confusingly similar to Complainant’s BOSE mark.
Respondent does not have any rights or legitimate interests in the <wwwbose.com> domain name.
Respondent registered and uses the <wwwbose.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s numerous trademark registrations for its BOSE
mark demonstrate its rights in the mark for purposes of satisfying Policy ¶ 4(a)(i).
The Panel therefore concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights and
legitimate interests in the disputed
domain name. Complainant has the initial
burden of proof to establish that Respondent lacks rights or legitimate
interests in the domain name. Once
Complainant makes out a prima facie case in support of its allegations,
the burden shifts to Respondent to show that it does have rights or legitimate
interests pursuant to Policy ¶ 4(a)(ii). See AOL
LLC v. Gerberg, FA 780200 (Nat. Arb. Forum
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.
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights to or legitimate interests in the disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum
Respondent's failure to respond not only
results in its failure to meet its burden, but also will be viewed as evidence
itself that Respondent lacks rights and legitimate interests in the disputed
domain name.
However, the Panel will now
examine the record to determine if there is any basis for concluding that Respondent
has rights or legitimate interests under Policy ¶ 4(c).
In this connection, we first observe that Respondent has
registered the <wwwbose.com> domain name while identifying itself as
“DN4Ever,” and
there is no other evidence in the record before us suggesting that Respondent
is commonly known by the disputed domain
name. Accordingly, the Panel finds that
Respondent has not established rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c)(ii). See, for example, Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum
Moreover, the undisputed evidence is that Respondent uses
the <wwwbose.com> domain name to redirect Internet users to its
own website, where it sells Complainant’s products without authorization. This does
not constitute a bona fide offering of goods or services under Policy ¶
4(c)(i) or a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii). In G.D. Searle & Co. v. Mahony, FA 112559 (Nat. Arb.
Forum June 12, 2002), a panel concluded that a respondent’s use of a
confusingly similar domain name to solicit pharmaceutical orders without a
license or authorization from a complainant did not constitute a bona fide
offering of goods or services under Policy ¶ 4(c)(i). Because Respondent here is also selling goods
without authorization by means of a domain name confusingly similar to a
registered mark, we conclude that Respondent does not have rights or legitimate
interests in the disputed domain name under either Policy ¶ 4(c)(i) or ¶ 4(c)(iii). Also
on the point, see Nat’l Collegiate Athletic Ass’n v. Halpern,
D2000-0700 (WIPO
Additionally, Respondent’s <wwwbose.com> is
simply a mistyped version of Complainant’s BOSE mark, omitting the customary
period, and meant to capitalize on Internet users’ common typographical
mistakes. In Diners Club Int’l Ltd.
v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum
June 23, 2003), a panel found that a respondent’s <wwwdinersclub.com> domain
name provided evidence in and of itself that that respondent had no rights or
legitimate interests in the disputed domain name. We agree.
Accordingly, the construction of Respondent’s domain name itself further
indicates that Respondent has no rights or legitimate interests in the disputed
domain name under Policy ¶ 4(a)(ii). See
also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini,
D2002-1011 (WIPO
The Panel thus concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s
diversionary use of the <wwwbose.com> domain name for commercial
gain, which it does not deny, comes within Policy ¶ 4(b)(iv), for by linking
the domain name to its own commercial website, Respondent takes advantage of
the confusing similarity between the disputed domain name and Complainant’s
BOSE mark in order to profit from the goodwill associated with the mark. See G.D. Searle
& Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21,
2002) (finding that a respondent registered and used a domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) because that respondent used a contested domain
name to attract Internet users to its commercial website); see also
AltaVista Co. v. Krotov,
D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv)
where a respondent’s domain name resolved to a website featuring links to
third-party websites that offered services similar to a complainant’s services by
taking advantage of Internet users’ mistakes).
Moreover, Respondent’s use of the <wwwbose.com> domain name, which is merely a typo-squatted
variation of Complainant’s legitimate web address, is evidence that Respondent
registered and is using the disputed domain name in bad faith pursuant to
Policy ¶ (4)(a)(iii). Internet users
seeking Complainant’s website at the <bose.com> domain name who
mistakenly omit the period after “www” resolve to Respondent’s website, leading
to consumer confusion over the possible source and affiliation of Respondent’s
site with Complainant’s mark. See Black & Decker Corp. v. Khan, FA
137223 (Nat. Arb. Forum Feb. 3, 2003) (finding that 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); see also RE/MAX Int’l, Inc. v. Seocho,
FA 142046 (Nat. Arb. Forum
Finally under this head, we note
that Respondent is charged with at least constructive knowledge of
Complainant’s rights in its BOSE mark
owing to its multiple registrations with the competent authorities in the
United States, so that Respondent’s recent registration of a domain name confusingly
similar to Complainant’s registered mark is, without more, evidence of
Respondent’s bad faith registration and use of the disputed domain name within
the compass of the Policy. Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum
For these reasons, the Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <wwwbose.com> domain name be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated:
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