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Generic Top Level Domain Name (gTLD) Decisions |
Gardens Alive, Inc. v. D&S Linx
Claim Number: FA0310000203126
PARTIES
Complainant
is Gardens Alive, Inc., Lawrenceburg, IN (“Complainant”) represented by Toby Kinerk, 5100 Schenley Place, Lawrenceburg, IN 47025. Respondent is D&S Linx 21610 Bay Palms Drive, Katy, TX (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <my-seasons.com>,
registered with Network Solutions, Inc.
PANEL
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.
Houston
Putnam Lowry, Chartered Arbitrator, as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on October 10, 2003; the Forum received
a hard copy of the
Complaint on October 14, 2003.
On
October 16, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that
the domain name <my-seasons.com>
is registered with Network Solutions, Inc. and that the 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
October 16, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”),
setting a deadline
of November 5, 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@my-seasons.com by e-mail.
A
timely Response was received and determined to be complete on November 5, 2003.
On November 12, 2003, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the Forum appointed Houston Putnam
Lowry, Chartered Arbitrator, as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
This
Complaint is based on the following factual and legal grounds:
1. Complainant, by and through its
predecessors in interest and title, has been and is currently using the Marks
“MYSEASONS” and “MYSEASONS
with design” (collectively, the “MYSEASONS” Marks)
as service marks in connection with the following services (hereinafter,
Complainant’s
Services):
Mail order catalog and online retail
store services featuring general merchandise in the field of home, kitchen and
bath, garden,
yard, gifts and seasonal celebration supplies. (from the United States trademark
applications and registrations)
2. Complainant has approximately three
subsidiaries and/or affiliates in the United States which have used and are
continuing to use
the “MYSEASONS” Marks in connection with offering the
Complainant’s Services under license agreements. All such use inures to the benefit of Complainant and will be
referred to herein as Complainant’s use.
3. Complainant and its affiliates also own
numerous famous trademark and service marks related to the gardening industry
including, but
not limited to AUDUBON WORKSHOP, BRECK’S, GARDENS ALIVE,
GURNEY’S, HENRY FIELDS, MICHIGAN BULB, ROCKY MEADOW and SPRING HILL, and
other
marks within these families of marks, and sells goods under these various marks
(hereinafter, Complainant’s Goods). All
Complainant’s Goods and Services are linked to the “MYSEASONS” Marks.
4. Complainant has common law service mark
rights in the “MYSEASONS” Marks.
5. Complainant, by and through its
predecessors in interest and title, has used the “MYSEASONS” Marks in
connection with Complainant’s
Services continuously and extensively since at
least as early as January 2000 in United States intra-country commerce and in
international
commerce between the United States and the rest of the world,
including offering for sale Complainant’s Services on the Internet
through
Complainant’s website accessed by the domain name, <myseasons.com>
website.
6. Complainant, by and through its
predecessors in interest and title, registered the domain name
<myseasons.com> when Complainant,
by and through its predecessors in
interest and title, began its development of its “MYSEASONS” Marks, in the
early Fall of 1999.
7. <myseasons.com> is the domain name
for one of Complainant’s websites where consumers find Complainant’s Goods and
Services and
where Complainant promotes and advertises Complainant’s Goods and
Services under the “MYSEASONS” Marks on the Internet. The home page from the <myseasons.com> website shows the
use of the “MYSEASON” Marks.
8. Complainant is utilizing its
<myseasons.com> website to market and sell Complainant’s Goods and
Services provided under the
“MYSEASONS” Marks on the Internet.
9. In addition to Complainant’s common law
rights in the “MYSEASONS” Marks based on the use described above, Complainant
also has the
additional rights acquired based on service mark applications and
registrations of the “MYSEASONS” Marks in the United States.
10. Complainant has invested approximately
tens of thousands of dollars to date in developing and promoting the
“MYSEASONS” Marks and
continues to invest substantial sums of money in
promoting, advertising, marketing and selling Complainant’s Goods and Services
under
and in association with the “MYSEASONS” Marks on a worldwide basis.
11. <my-seasons.com> is the domain name that is the subject
of this Complaint and this domain name dispute.
12. Respondent registered the domain name <my-seasons.com>.
13. Respondent’s domain name registration for
<my-seasons.com> is identical to Complainant’s “MYSEASONS” Marks
except for the addition of the “-”, the hyphen.
14. Respondent’s domain name registration for
<my-seasons.com> is identical to the Complainant’s United States
registration for the Mark “MYSEASONS”, except for the addition of the “-”, the
hyphen.
15. Respondent’s domain name registration for
<my-seasons.com> is confusingly similar to Complainant’s United
States application for the “MYSEASONS with design” Mark because Respondent’s
domain
name registration for <my-seasons.com> is identical to the
major portion of the Complainant’s United States application for the “MYSEASONS
with design” Mark, namely, the
letters and/or word, “MYSEASONS”.
16. For all these reasons, Respondent’s
domain name registration for <my-seasons.com> is both identical to
and confusingly similar to Complainant’s “MYSEASONS” Marks and Complainant’s
United States service mark registration
and application for the “MYSEASONS”
Marks.
17. Respondent registered the domain name <my-seasons.com>
on December 22, 1999 with Network Solutions, Inc.
18. D&S Linx is not nor has ever been
licensed or authorized in any manner to use Complainant’s “MYSEASONS” Marks for
any purpose
or in any manner.
19. Respondent’s domain name registration for
<my-seasons.com> was created after the date that Complainant, by
and through its predecessors in interest and title, filed the application for
registration
of the “MYSEASONS” Mark in the United States, namely, after
December 20, 1999. Under United States
trademark law, the effective date of first use for Complainant’s “MYSEASONS”
Mark is December 20, 1999 because
the application matured to registration.
20. Complainant’s rights in the “MYSEASONS”
Marks and Complainant’s rights in Complainant’s United States registration
predate Respondent’s
ownership of the domain name <my-seasons.com>. Respondent, therefore, has no rights or
legitimate interests in the domain name <my-seasons.com>.
21. Respondent had and continues to have a
duty to determine whether or not Respondent’s domain name registration
infringes or violates
someone else’s rights, under the Uniform Domain Name
Dispute Resolution Policy of Network Solutions. Respondent cannot be deemed to have any rights or legitimate
interests in the domain name <my-seasons.com> because
Complainant’s rights predate Respondent’s and Respondent had an affirmative
duty not to infringe or violate those rights.
22. Upon information and belief, as of the
date of this Complaint, Respondent has made no legitimate use of the domain
name <my-seasons.com>. The
<my-seasons.com> domain name calls up a web page for
<thumbgreen.com>. Attached hereto
and indexed as Exhibit H is a copy of the <my-seasons.com> web
page. Respondent is attempting to
misdirect Internet traffic by using Complainant’s “MYSEASONS” Mark as part of
Respondent’s domain name
<my-seasons.com>. Respondent has no rights or legitimate
interests in the domain name <my-seasons.com> because Respondent
has not used the domain name in connection with a bona fide offering of goods
or services, as set forth in the
Policy ¶ 4(c)(i).
23. Furthermore, Respondent has included
numerous other marks owned by Complainant on its <my-seasons.com>
website with links to Complainant’s other websites. These other marks owned by Complainant and improperly appearing
on Respondent’s website include AUDUBON WORKSHOP, BRECK’S, GARDENS
ALIVE,
GURNEY’S, HENRY FIELDS, MICHIGAN BULB, ROCKY MEADOW and SPRING HILL. Because of the use of these additional
trademarks and service marks owned by Complainant, Respondent’s website <my-seasons.com>
and the other links listed thereon have the appearance of being affiliated with
or sponsored by Complainant.
Complainant is not affiliated with nor does it sponsor any of
Respondent’s goods or services.
Respondent is, therefore, not making a legitimate noncommercial fair use
of the domain name and therefore, can have no legitimate
rights or interests in
the domain name, as set forth in Policy ¶ 4(c)(iii).
24. Upon information and belief, D&S
Linx, the Respondent, is not commonly known by the word “MYSEASONS”. On the web page for <my-seasons.com>,
Respondent lists no consumer product or service associated with the domain name
or with “MYSEASONS”. Furthermore,
D&S Linx has no connection or affiliation with the domain name <my-seasons.com>,
other than use as an illegitimate portal to misdirect Internet users looking
for Complainant’s website <myseasons.com> to
other websites. Therefore, D&S Linx has no rights or
legitimate interests in the domain name <my-seasons.com> because
Respondent was not commonly known by the domain name, as set forth in the
Policy ¶ 4(c)(ii).
25. Respondent’s <my-seasons.com>
domain name trades on the consumer recognition in Complainant’s “MYSEASONS”
Marks. If an Internet user adds a
hyphen between the “MY” and “SEASONS” Mark, the Internet user, who is seeking
Complainant’s Goods and Services
by typing Complainant’s “MYSEASONS” Mark, ends
up at Respondent’s <my-seasons.com> site. The domain name <my-seasons.com>
is valuable because of the consumer recognition in Complainant’s “MYSEASONS”
Marks. Respondent’s choice of domain
name acknowledges the value of the “MYSEASONS” Marks in that consumers will be
searching for Complainant’s
Services by typing “MYSEASONS” or some variation
thereof. Respondent is engaging in
classic cybersquatting activities, namely registering someone else’s
trademark/service mark as a domain
name and then attempting to profit from such
registration. Specifically, Respondent
is a “typo-squatter’. Respondent is, therefore, misleadingly diverting
consumers to Respondent’s website
and therefore, can have no legitimate rights
or interests in the domain name, as set forth in Policy ¶ 4(c)(iii).
26. Finally, Complainant has invested
considerable time and effort to develop and maintain the integrity of
Complainant’s Goods and Services
provided in association with the “MYSEASONS”
Marks. Complainant has created, developed,
invested in and cultivated a reputation with consumers as represented by the
“MYSEASONS” Marks
which are known by online consumers. Complainant has developed a reputation that
the Complainant’s Goods and Services, provided under the “MYSEASONS” Marks,
have a certain
quality.
27. Respondent’s use of the <my-seasons.com>
domain name for services not originating from Complainant nor governed by
Complainant’s rigorous standards tarnishes Complainant’s
reputation and the
considerable goodwill Complainant has developed with consumers as symbolized by
the “MYSEASONS” Marks. Respondent is,
therefore, tarnishing the reputation of Complainant and Complainant’s
“MYSEASONS” Marks and therefore, can have no
legitimate rights or interests in
the domain name, as set forth in Policy ¶ 4(c)(iii).
28. For all these reasons, Respondent has no
rights or legitimate interest in the domain name <my-seasons.com>
RESPONDENT HAS
REGISTERED THE DOMAIN NAME <MY-SEASON.COM> IN BAD FAITH.
30. Complainant contacted the administrative
contact for Respondent, Dwight Fultz, by phone, by emails dated February 7,
2002; February
8, 2002 and February 19, 2002 and by letter dated February 8,
2002. All communications sought to
inform Respondent that Complainant was the owner of the “MYSEASONS” Marks. All communications stated that Complainant
believed Respondent’s domain name registration of <my-seasons.com>
infringed on Complainant’s service mark rights. Complainant sought the transfer and assignment of the domain name
<my-seasons.com> from Respondent.
Attached hereto and indexed as Exhibits I, J, K, and L are copies of the
written communications.
31. As noted in the email correspondence,
Respondent sought to sell the domain name to Complainant, the rightful owner of
the “MYSEASONS”
Mark, for an amount in excess of the out-of-pocket expenses
related to the domain name. As set
forth in Policy ¶ 4(b)(i), these facts evidence Respondent’s bad faith
registration of the domain name.
32. Complainant, by and through its
Attorneys, attempted to contact Respondent again by letter dated March 13,
2002. The March 13, 2002 letter sought
to inform Respondent that Complainant was the owner of the “MYSEASONS”
Marks. The letter stated that
Complainant believed Respondent’s domain name registration of <my-seasons.com>
infringed on Complainant’s service mark rights. Complainant sought the transfer and assignment of the domain name
<my-seasons.com> from Respondent.
Attached hereto and indexed as Exhibit M is a copy of the March 13, 2002
letter.
33. Complainant’s Goods and Services, as set
forth in detail above, and, as shown in the web page attached hereto as Exhibit
F, are plants,
shrubs, trees, bulbs and other gardening related items.
34. Respondent’s website has links to other
sites which sell goods and services that are nearly identical to Complainant’s
Goods and Services.
35. Complainant has had and continues to have
an active, growing web based business using the “MYSEASONS” Marks. Respondent would have been or should have
been aware of Complainant’s “MYSEASONS” Marks and Complainant’s Goods and
Services.
36. Upon information and belief, Respondent
was, in fact, well aware of the reputation of Complainant’s Goods and Services
and the goodwill
associated with Complainant’s “MYSEASONS” Marks and had
knowledge of Complainant’s “MYSEASONS” Marks because Respondent registered
the
domain name <my-seasons.com> to take advantage of typing errors
users make in trying to get to Complainant’s <myseasons.com> website.
37. Respondent, as a competitive gardening
industry web portal, registered the domain name <my-seasons.com>,
which misleads and diverts customers looking for Complainant’s Services under
the “MYSEASONS” Marks.
38. Respondent’s site is likely to cause and
is causing disruption to Complainant’s business because customers and potential
customers
who search the Web for Complainant’s site, find the <my-seasons.com>
site, which is linked to gardening related goods and services not affiliated
with or sponsored by Complainant.
Consumers searching for Complainant, Complainant’s Goods and Services or
the “MYSEASONS” Marks by which Complainant is widely known
are likely to
mistake the <my-seasons.com> site for Complainant’s site. Consumers will be confused when the <my-seasons.com>
site links to the <directgardening.com> site for example. Complainant’s business will be and is being
disrupted, in a particularly damaging manner, when a consumer makes the mistake
of launching
the <my-seasons.com> website and reaches the
<thumbgreen.com> website rather than Complainant’s website. By causing such disruption, Respondent
evidences its bad faith registration of the domain name <my-seasons.com>,
as set forth in Policy ¶ 4(b)(iii).
39. The fact that Respondent has adopted a
nearly identical secondary level domain name as Complainant’s “MYSEASONS” Marks
is likely to
cause confusion with Complainant’s “MYSEASONS” Marks.
40. Upon information and belief, Respondent
intentionally registered the <my-seasons.com> domain name knowing
of Complainant’s “MYSEASONS” Marks and Complainant’s Services.
41. Consumers are likely to be confused about
whether or not the <my-seasons.com> Website is sponsored by or
affiliated with or endorsed by Complainant since it uses Complainant’s
“MYSEASONS” Marks prominently in
the domain name.
42. Respondent’s use of the <my-seasons.com>
domain name for gardening related items is likely to cause confusion in the
consumers’ mind as to whether or not Complainant is providing
or sponsoring
those gardening related items, accessible from the Respondent’s web page using
the <my-seasons.com> domain name, since the <my-seasons.com>
domain name is identical and confusingly similar with the “MYSEASONS” Marks.
43. As previously stated, the <my-seasons.com>
site offers links to gardening related products for sale and therefore is a
site maintained for commercial gain.
44. Respondent has registered the domain name
<my-seasons.com> in bad faith because the registration and the
current use of the domain name <my-seasons.com>, as a link to the
<thumbgreen.com> website attempts to attract for commercial gain Internet
users to Respondent’s website by
creating a likelihood of confusion with
Complainant’s “MYSEASONS” Marks as to the source, sponsorship, affiliation and
endorsement
of the <thumbgreen.com> website, as set forth in Policy ¶
4(b)(iv).
46. For all the above reasons, Complainant
believes the <my-seasons.com> domain name is identical to and
confusingly similar with Complainant’s “MYSEASONS” Marks, that Respondent has
no rights or legitimate
interests in the <my-seasons.com> domain
name and that the registration of the domain name <my-seasons.com>
should be considered as having been registered in bad faith.
B.
Respondent
The
Respondent has not provided its response in an electronic format that readily
allows the Panel to insert it at length here.
The important facts seem to be <my-seasons.com> was
registered after Complainant registered its domain name. The precise date recited in the documents by
the parties differs from the date specified in one of the exhibits. For the purposes of this decision, the Panel
assumes the domain name was registered on December 22, 1999. Respondent purchased about forty “my-”
domain names all at the same time.
The
<my-seasons.com> domain name is set to forward to the
<thumbgreen.com> website, which competes with <myseasons.com>.
Sometime
in March 2001, Respondent began acting as an affiliate for
<myseasons.com> through a program called Commission Junction
(offered
through <commissionjunction.com>).
This is a referral program that gives a commission to Respondent for
each sale it routes though Complainant’s website. In short, it means Complainant knew of Respondent’s website
sometime since 2001. Complainant
terminated Respondent’s participation in the program before brining this
proceeding.
Finally,
Complainant began negotiations with Respondent to offer $1,000 (plus transfer
fees) to transfer the <my-seasons.com> domain name to Complainant. That offer was never actually made and
Complainant merely offers to pay Respondent’s out-of-pocket costs.
FINDINGS
Complainant has proven:
(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;
(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.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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 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;
(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.
Complainant has established rights in the MYSEASONS
mark through registration of the mark with the U.S. Patent and Trademark Office
(“USPTO”) on June 24, 2003 (Reg. No. 2,729,570 – filed December 20, 1999) and
use of the mark in commerce since January 2000. See
Men’s Wearhouse, Inc. v. Wick,
FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law,
registered marks hold a presumption that they are inherently
distinctive and have
acquired secondary meaning”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5,
2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which
creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this
assumption).
Furthermore, the <my-seasons.com> domain name is
identical to Complainant’s mark because the domain name fully incorporates the
MYSEASONS mark and merely inserts a
hyphen between the words “my” and “seasons”
and adds the generic top-level domain “.com.”
See Chernow Communications, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (“the
use or absence of punctuation marks, such as hyphens, does not alter the fact
that a name is
identical to a mark"); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22,
2000) ("the addition of the generic top-level domain (gTLD) name ‘.com’ is
. . . without legal significance
since use of a gTLD is required of domain name
registrants").
Respondent was
not authorized or licensed to register or use a domain name that incorporates
the MYSEASONS mark (although Complainant
did know of the existence of the
domain name for some period of time before bringing this proceeding). Respondent lacks rights and legitimate
interests in the domain name because Respondent is not commonly known by the
domain name pursuant
to Policy ¶ 4(c)(ii).
See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000)
(finding no rights or legitimate interest where Respondent was not commonly
known by the mark and
never applied for a license or permission from
Complainant to use the trademarked name); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb.
5, 2001) (finding no rights or legitimate interests because Respondent is not
commonly known by
the disputed domain name or using the domain name in
connection with a legitimate or fair use).
In addition,
Respondent is using a domain name that is confusingly similar to the MYSEASONS
mark for commercial benefit by diverting
Internet users to the
<thumbgreen.com> website, which sells goods and services similar to
Complainant’s goods and services. Such
use does not constitute a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i) nor a legitimate noncommercial
or fair use pursuant to Policy
¶ 4(c)(iii). See
MSNBC Cable, LLC v. Tysys.com,
D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in
the famous MSNBC mark where Respondent attempted to
profit using Complainant’s
mark by redirecting Internet traffic to its own website); see also Winmark
Corp. d/b/a Play It Again Sports v. In The Zone a/k/a Giant Sports Factory,
FA 128652 (Nat. Arb. Forum Dec. 6, 2002) (finding that Respondent had no rights
or legitimate interests in a domain name that used
Complainant’s mark to
redirect Internet users to a competitor’s website).
Furthermore,
Respondent’s use of the <my-seasons.com> domain name constitutes
typosquatting and such conduct is evidence that Respondent lacks rights or
legitimate interests in the domain
name.
See Encyclopaedia Britannica, 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);
see also Nat’l Ass’n of Prof’l Baseball Leagues,
Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a
means of redirecting consumers against their will to another site, does not
qualify
as a bona fide offering of goods or services, whatever may be the goods or
services offered at that site”).
Upon
Complainant’s successful registration of the mark, Complainant’s rights in the
mark are effective as of the date the application
for registration was filed,
i.e. December 20, 1999. Complainant’s
rights in the MYSEASONS mark predate Respondent’s registration of the <my-seasons.com> domain name
(December 22, 1999), and therefore Respondent lacks rights or legitimate
interests in the domain name. See J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 U.S.P.Q. 435
(C.C.P.A. 1965) (registration on the Principal Register is prima facie proof of
continual use of the mark, dating back to the filing
date of the application
for registration). While Complainant’s
rights do not predate Respondent’s domain name registration by very much,
Complainant’s rights predate Respondent’s
domain name registration.
In addition, the <my-seasons.com> domain
name simply points to another website.
This means Respondent has not constructed a website for the <my-seasons.com> domain name (suggesting a higher level of
scrutiny is appropriate to determine if Respondent has any rights or legitimate
interests).
The key question is whether or not
Respondent registered and is using the domain name in bad faith. What happened between those two dates (when
Respondent had at least implied permission to use the domain name from
Complainant and
its predecessors) is not relevant under the UDRP.
Respondent registered and used the <my-seasons.com> domain name
in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is
using a domain name that is confusingly similar
to the MYSEASONS mark for
commercial benefit by diverting Internet users to the <thumbgreen.com>
website, which sells competing
goods and services. See
G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21,
2002) (finding that Respondent registered and used the domain name in bad faith
pursuant to
Policy ¶ 4(b)(iv) because Respondent was using the confusingly
similar domain name to attract Internet users to its commercial website);
see
also 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).
Respondent’s use of the <my-seasons.com> domain name
constitutes typosquatting and is evidence of bad faith registration and use
pursuant to Policy ¶ 4(a)(iii). See Nat’l
Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003)
(“Typosquatting … is the intentional misspelling of words with intent to
intercept and siphon off
traffic from its intended destination, by preying on
Internauts who make common typing errors.
Typosquatting is inherently parasitic and of itself evidence of bad
faith”); 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,” evidence that the domain name was registered and used in bad
faith).
While Complainant claims Respondent attempted to
sell the <my-seasons.com> domain name for more than its
out-of-pocket costs, which is evidence of bad faith pursuant to Policy ¶
4(b)(i), the evidence indicates
Complainant raised the issue and made a
conditional offer. This Panel is not
willing to find bad faith based upon these negotiations.
DECISION
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <my-seasons.com>
domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered
Arbitrator, Panelist
Dated: November 20, 2003
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