DECISION

LTD Commodities LLC v. Ling Shun Shing

Claim Number:  FA0302000146938

PARTIES

Complainant is LTD Commodities LLC, Bannockburn, IL, USA (“Complainant”) represented by Irwin C. Alter of Alter and Weiss. Respondent is Ling Shun Shing, Shanghai, CHINA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <lltdcommodities.com>, <ltdcommododities.com>, <ltdcommocities.com>, <ltdcommoddities.com>, <ltdcommodeties.com>, <ltdcommodieties.com>, <ltdcommodiies.com>, <ltdcommoditeis.com>, <ltdcommoditie.com>, <ltdcommoditied.com>, <ltdcommodoities.com>, <ltdcommoodities.com>, <ltdcommotidies.com>, <ltdcommodiites.com>, <ltdcommoditis.com> and <ltdcommoditities.com> registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com.

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.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 27, 2003; the Forum received a hard copy of the Complaint on March 3, 2003.

On March 3, 2003, Iholdings.Com, Inc. d/b/a Dotregistrar.Com confirmed by e-mail to the Forum that the domain names <lltdcommodities.com>, <ltdcommododities.com>, <ltdcommocities.com>, <ltdcommoddities.com>, <ltdcommodeties.com>, <ltdcommodieties.com>, <ltdcommodiies.com>, <ltdcommoditeis.com>, <ltdcommoditie.com>, <ltdcommoditied.com>, <ltdcommodoities.com>, <ltdcommoodities.com>, <ltdcommotidies.com>, <ltdcommodiites.com>, <ltdcommoditis.com> and <ltdcommoditities.com> are registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com and that Respondent is the current registrant of the names. Iholdings.Com, Inc. d/b/a Dotregistrar.Com has verified that Respondent is bound by the Iholdings.Com, Inc. d/b/a Dotregistrar.Com 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 March 4, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 24, 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@lltdcommodities.com, postmaster@ltdcommododities.com, postmaster@ltdcommocities.com, postmaster@ltdcommoddities.com, postmaster@ltdcommodeties.com, postmaster@ltdcommodieties.com, postmaster@ltdcommodiies.com, postmaster@ltdcommoditeis.com, postmaster@ltdcommoditie.com, postmaster@ltdcommoditied.com, postmaster@ltdcommodoities.com, postmaster@ltdcommoodities.com, postmaster@ltdcommotidies.com, postmaster@ltdcommodiites.com, postmaster@ltdcommoditis.com and postmaster@ltdcommoditities.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 27, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Judge Harold Kalina (Ret.) 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 names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s disputed domain names are confusingly similar to Complainant’s LTD COMMODITIES mark.

2. Respondent does not have any rights or legitimate interests in the disputed domain names.

3. Respondent registered and used the disputed domain names in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the LTD COMMODITIES mark (Reg. No. 2,409,188 registered on November 28, 2000) in relation to a catalog mail-order distributorship for general merchandise. Complainant has conducted this business from its website at <ltdcommodities.com> since May 31, 1996.

Respondent registered the disputed domain names between September 25, 2002 and October 14, 2002. Respondent is using the disputed domain names to redirect Internet traffic to a portal website that provides connections to other websites offering a variety of goods and services.

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 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 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.

Identical and/or Confusingly Similar

Complainant has established its rights in the LTD COMMODITIES mark through registration with the USPTO and continuous use in commerce since 1963.

Respondent’s domain names are confusingly similar to Complainant’s mark because each of the disputed domain names contains a simple misspelling of Complainant’s registered mark. Respondent’s deliberate inclusion of spelling errors does not sufficiently distinguish Respondent’s domain names from Complainant’s mark for Respondent to survive a confusing similarity challenge pursuant to Policy ¶ 4(a)(i). See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding that the domain names, <davemathewsband.com> and <davemattewsband.com>, are common misspellings and therefore confusingly similar).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not come forward to respond to the Complaint in this proceeding. Therefore, the Panel may accept Complainant’s reasonable inferences and allegations as true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertion in this regard”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Furthermore, the Panel may infer that Respondent lacks any rights to or legitimate interests in the disputed domain names because of Respondent’s failure to favor this Panel with a Response. See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because the Respondent never submitted a response nor provided the Panel with evidence to suggest otherwise); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).

Respondent is using the disputed domain names to divert Internet traffic to a portal website that provides connections to websites offering a variety of goods and services. The use of a confusingly similar domain name to a registered mark to divert Internet users is not a use in connection with 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 Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use).

Moreover, Respondent has not provided the Panel with any proof and there is no evidence in the record to establish that Respondent is commonly known by any of the disputed domain names. Thus, the Panel infers that Respondent has no rights to or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See 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); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

The Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent is “typosquatting” on Complainant’s mark. The practice of typosquatting involves the registration of a common misspelling of a well-known domain name to divert Internet traffic to a website for commercial gain. Typosquatting has often been recognized as evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Nat’l Ass’n of  Prof’l Baseball Leagues 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 Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (stating that “in typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing <wwwmedline.com> domain name”).

The Panel finds that Complainant has established Policy ¶ 4(a)(iii).

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <lltdcommodities.com>, <ltdcommododities.com>, <ltdcommocities.com>, <ltdcommoddities.com>, <ltdcommodeties.com>, <ltdcommodieties.com>, <ltdcommodiies.com>, <ltdcommoditeis.com>, <ltdcommoditie.com>, <ltdcommoditied.com>, <ltdcommodoities.com>, <ltdcommoodities.com>, <ltdcommotidies.com>, <ltdcommodiites.com>, <ltdcommoditis.com> and <ltdcommoditities.com> domain names be TRANSFERRED from Respondent to Complainant.

Judge Harold Kalina (Ret.), Panelist

Dated:  April 1, 2003

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