DECISION

LTD Commodities LLC v. XCsquare d/b/a Registrant

Claim Number: FA0312000216771

PARTIES

Complainant is LTD Commodities LLC (“Complainant”) represented by Irwin C. Alter of Alter and Weiss, 19 S. LaSalle, Suite 1650, Chicago, IL 60603. Respondent is XCsquare d/b/a Registrant (“Respondent”), P.O. Box No. 71826, MFTES, Moscow, Russian Federation.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ltdcommidites.com> registered with OnlineNIC, 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.

Louis E. Condon as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 5, 2003; the Forum received a hard copy of the Complaint on December 8, 2003.

On December 8, 2003, OnlineNIC, Inc. confirmed by e-mail to the Forum that the domain name <ltdcommidites.com> is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 December 16, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 5, 2004 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@ltdcommidites.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 12, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Louis E. Condon 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 makes the following assertions:

1. Respondent’s <ltdcommidites.com> domain name is confusingly similar to Complainant’s LTD COMMODITIES mark.

2. Respondent does not have any rights or legitimate interests in the <ltdcommidites.com> domain name.

3. Respondent registered and used the <ltdcommidites.com> domain name in bad faith.

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

FINDINGS

Complainant has been in business since 1963 in the field of catalog mail order distributorships for general merchandise, including toys, housewares and gifts. 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 operated its principal website at the <ltdcommodities.com> domain name since May 31, 1996.

Respondent registered the <ltdcommidites.com> domain name on September 4, 2002. Respondent is using the disputed domain name to redirect Internet traffic to a search-engine website.

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 demonstrated its rights in the LTD COMMODITIES mark through registration with the USPTO. See 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).

Complainant contends that Respondent’s <ltdcommidites.com> domain name is confusingly similar to Complainant’s LTD COMMODITIES mark because the disputed domain name incorporates Complainant’s mark and includes two typographical errors, replacing the second letter “o” with the letter “i” and omitting the second letter “i” from the mark. The Panel concludes that Respondent’s incorporation of these typographical errors does not sufficiently differentiate the domain name from the mark in accord with 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 Policy ¶ 4(a)(i) has been established.

Rights or Legitimate Interests

Respondent has chosen not to favor the Panel with a Response in this proceeding. Therefore, the Panel accepts all reasonable allegations and inferences in the Complaint to be true. See 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”); 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).

Moreover, based on Respondent’s failure to respond to Complainant’s allegations, the Panel presumes Respondent lacks all rights to and legitimate interests in the disputed domain name with regard to Policy ¶ 4(a)(ii). See 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); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond).

Respondent is using the <ltdcommidites.com> domain name to redirect Internet traffic to a search-engine website. Respondent’s use of the disputed domain name to divert Internet users from Complainant’s website fails to demonstrate 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). See Disney Enterss, Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum March 17, 2003) (finding that Respondent’s diversionary use of Complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); see also 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).

Furthermore, Respondent has presented no evidence and nothing in the record indicates that Respondent is commonly known by LTDCOMMIDITES or <ltdcommidites.com>. Thus, the Panel finds that Respondent has failed to demonstrate any rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“Considering the nonsensical nature of the [<wwwmedline.com>] domain name and its similarity to Complainant’s registered and distinctive [MEDLINE] mark, the Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent”).

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

Registration and Use in Bad Faith

Respondent’s registration of a domain name that incorporates Complainant’s registered trademark but includes typographical errors in the spelling of the mark demonstrates a practice called “typosquatting.” Typosquatting involves the registration of a typographically similar domain name to a registered mark to capitalize on errors committed by Internet users in typing a trademark holder’s mark as a domain name. Typosquatting itself evidences registration and use in bad faith under Policy ¶ 4(a)(iii). 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) (“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”).

Furthermore, Respondent’s unauthorized registration and use of the <ltdcommidites.com> domain name, a domain name confusingly similar to Complainant’s LTD COMMODITIES mark, to redirect Internet traffic to a search engine, presumably for commercial gain, demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where Respondent registered the domain name <bigtex.net> to infringe on Complainant’s goodwill and attract Internet users to Respondent’s website); see also Kmart v. Khan, 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)).

Accordingly, the Panel finds that Complainant has established Policy ¶ 4(a)(iii).

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.

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

Louis E. Condon, Panelist

Dated:  January 26, 2004

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