DECISION

Household International, Inc. v. Web Solutions

Claim Number: FA0212000135646

PARTIES

Complainant is Household International, Inc., Prospect Heights, IL (“Complainant”) represented by Sean S. Swidler, of Michael Best & Friedrich LLC.  Respondent is Web Solutions, Victor, NY (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <houshold.com>, registered with Intercosmos Media Group Inc. d/b/a Directnic.com.

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.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on December 6, 2002; the Forum received a hard copy of the Complaint on December 11, 2002.

On December 6, 2002, Intercosmos Media Group Inc. d/b/a Directnic.com confirmed by e-mail to the Forum that the domain name <houshold.com> is registered with Intercosmos Media Group Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name.  Intercosmos Media Group Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group Inc. d/b/a Directnic.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 December 11, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 31, 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@houshold.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 January 9, 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 name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The  <houshold.com> domain name is confusingly similar to Complainant's HOUSEHOLD mark.

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

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

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant holds numerous service marks for its HOUSEHOLD mark with the United States Patent and Trademark Office, including Registration Numbers 828,365 and 2,101,720.  Complainant uses its mark in connection with banking and various other financial services, including mortgage services.

Complainant is a $107 billion provider of financial services and is a leading provider of consumer loans and credit cards in the United States, Canada and the United Kingdom.  Complainant has been in the business of financial services since 1878, and has done business under the HOUSEHOLD mark since 1935.

Respondent registered the <houshold.com> domain name on May 28, 2001.  Respondent uses the disputed domain name to divert Internet users to a website that offers mortgage services in competition with Complainant, located at <homemortgages.com>.

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 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 that it has rights in the HOUSEHOLD mark through continuous use as well as through registration with the United States Patent and Trademark Office.

The <houshold.com> domain name is confusingly similar to Complainant’s mark because it merely deletes the “e” from the end of the word “house.”  This change merely takes advantage of a common typing error and therefore does not create any distinct characteristics capable of overcoming a claim of confusing similarity pursuant 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 State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the Complainant’s STATE FARM mark).

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

Rights or Legitimate Interests

Respondent has failed to come forward with a Response.  Therefore, the Panel is permitted to make reasonable inferences in favor of the Complainant and accept Complainant’s allegations as true.  See 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); 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”). 

Furthermore, based on Respondent’s failure to respond, it is presumed that Respondent lacks rights and legitimate interests in the disputed domain name.  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because Respondent never submitted a Response nor provided the Panel with evidence to suggest otherwise).

Respondent is using the disputed domain name in order to divert Internet users to <homemortgages.com>, a website that competes with Complainant’s services.  The use of a domain name confusingly similar to Complainant’s mark in order to divert Internet users to a website that competes with Complainant’s products or services is not considered to be a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that “[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the Complainant’s mark and for the same business”).

There is no evidence on record that establishes that Respondent is commonly known as HOUSHOLD or <houshold.com>.  Respondent is using the disputed domain name in order to divert Internet users to a website that advertises mortgage services and makes no use of the HOUSHOLD name, nor has Respondent come forward with any evidence to prove that it is known under the name.  Therefore, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See 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); 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 Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Paragraph 4(b) of the Policy enumerates four situations that give rise to evidence of bad faith.  These four situations are not meant to be exclusive factors when determining whether or not a Respondent registered a domain name in bad faith.  The Panel is also allowed to look at the totality of circumstances.  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).

The disputed domain name <houshold.com> is a common misspelling of Complainant’s HOUSEHOLD mark and therefore evidences typosquatting on the part of Respondent.  Typosquatting is the practice of diverting Internet users who accidentally misspell Complainant’s mark when typing it into the URL.  This practice is evidence of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).  See e.g. Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com> and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to Complainant).

Furthermore, it can be inferred that Respondent is making a profit from the Internet traffic it diverts to the <homemortgages.com> domain name.  Respondent is therefore using a confusingly similar domain name in order to create a likelihood of confusion for its own commercial gain, which is evidence of registration and use in bad faith pursuant to Policy ¶ 4(b)(iv).  See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain).

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 <houshold.com> be TRANSFERRED from Respondent to Complainant.

Judge Harold Kalina (Ret.), Panelist

Dated:  January 21, 2003

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