DECISION

Florists' Transworld Delivery v. Seocho

Claim Number: FA0202000104976

PARTIES

Complainant is Florists' Transworld Delivery, Downers Grove, IL (“Complainant”) represented by Scott J. Major, of Millen, White, Zelano & Branigan, P.C.  Respondent is Seocho, Seoul, KOREA (“Respondent).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <wwwftd.com>, registered with BulkRegister.com, Inc.

PANEL

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.

 Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on February 21, 2002; the Forum received a hard copy of the Complaint on February 22, 2002.

On February 21, 2002, BulkRegister.com, Inc. confirmed by e-mail to the Forum that the domain name <wwwftd.com> is registered with BulkRegister.com, Inc. and that Respondent is the current registrant of the name.  BulkRegister.com, Inc. has verified that Respondent is bound by the BulkRegister.com, 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 February 22, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of March 14, 2002 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@wwwftd.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 March 21, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Respondent’s <wwwftd.com> domain name is confusingly similar to Complainant’s FTD mark.

Respondent has no rights or legitiamte interests in the disputed domain name.

Respondent regsitered and used the disputed domain name in bad faith.

B. Respondent

No Response was received.

FINDINGS

Complainant has registered its FTD mark in several countries in relation to its wide range of products and services including bowls, baskets, floral arrangements, clothing, telecommunications services, and mail order services featuring floral products.  Complainant registered FTD with the United States Patent and Trademark Office on January 9, 1990, Reg. No. 1,576,429.

Additionally, Complainant has been using the FTD mark in relation to its floral goods and services since 1910.  During the three most recent fiscal years, Complainant and its subsidiary, FTD.com, have spent in excess of $100 million on marketing and promotionalcampaigns for the goods and services offered through the FTD mark and have enjoyed revenues in excess of $500 million.  Due to Complainant’s substantial promotion, FTD has developed into one of the world’s most powerful commercial symbols.  Moreover, Complainant supports approximately 14,000 independent retail florists in 150 countries under its FTD mark.  The mark is primarily responsible for Complainant’s overall goodwill estimated at $65 million.

Respondent registered the disputed domain name on July 3, 2001.  Respondent initially linked the disputed domain name to a website at <iflorist.com>, a competitor of Complainant’s that offers floral products and services over the Internet.  When contacted by Complainant, the owner of <iflorist.com> website denied any connection with Respondent.  The domain name has since been deactivated, currently providing a page that reads “No Such Page.” 

DISCUSSION

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 the 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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the 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.

Identical and/or Confusingly Similar

Complainant has legal rights to its FTD mark through its federal registration of the mark.

Respondent’s <wwwftd.com> domain name is confusingly similar to Complainant’s FTD mark because it incorporates the distinctive mark in its entirety, merely adding “www” and the generic top-level domain name “.com.”  See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Trump v. Baltic Consultants Ltd., FA 101814 (Nat. Arb. Forum Dec. 10, 2001) (finding the addition of “www” to Complainant’s marks is insignificant in the determination of confusing similarity); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).

 The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent, known as Seocho, does not have any rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii) because it is not commonly known by the disputed domain name or FTD.  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration of the domain name; (3) Respondent is not commonly known by the domain name in question); see also 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).

Respondent’s use of the website merely as a link to the website of another business is not a bona fide offering of goods pursuant to Policy ¶ 4(c)(i).  See Computer Doctor Franchise Sys., Inc. v. The Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the Respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names). 

Moreover, Respondent’s use of a disputed domain name that reflects a misspelling of Complainant’s famous mark, without providing a bona fide offering of goods, fails to satisfy Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).  See Oly Holigan, L.P. v. Private, FA 95940 (Nat. Arb. Forum Dec. 4, 2000) (finding no rights or legitimate interest in a misspelled domain name because Respondent did not provide any bona fide products in connection with the domain name); see also Encyclopaedia Brittanica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark)

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent’s use of a domain name confusingly similar to Complainant’s well-known FTD mark evidences a willingness to trade on Complainant’s goodwill, and indicates Respondent’s bad faith use and registration of the disputed domain name.  See CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000)  (finding that, given the long use and fame of the Complainant’s mark, the Respondent’s conduct is evidence of bad faith); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”).

Respondent’s use of the confusingly similar domain name to link to the website of one of Complainant’s competitors indicates bad faith use and registration pursuant to Policy ¶ 4(b)(iii).  See Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competed with Complainant’s business).

Because Complainant’s FTD mark is arbitrary, fanciful, and unique, Respondent is not likely to have independently devised the domain name; rather, due to the fame of Complainant’s mark Respondent is assumed to have had notice of the FTD mark at the time of registration. Registration of an infringing domain name with actual or constructive knowledge of the respective mark further demonstrates bad faith under the Policy.  See Nintendo of Am. Inc v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding bad faith where Complainant’s marks were unique, the possibility that Respondent devised the  domain names independently was remote, and the domain names incorporated Complainant’s entire mark); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).

           The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN policy, the Panel concludes that the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <wwwftd.com> be transferred from Respondent to Complainant.

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court (Ret.)

Dated: March 25, 2002

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