DECISION
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:
COMPLAINANT’S TRADEMARKS, SERVICE MARKS
AND INTERNET PRESENCE
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)
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.
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.
Complainant has common law service mark
rights in the “MYSEASONS” Marks.
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.
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.
<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.
Complainant is utilizing its
<myseasons.com> website to market and sell Complainant’s Goods and
Services provided under the “MYSEASONS” Marks on the Internet.
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.
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.
RESPONDENT’S DOMAIN NAME IS IDENTICAL TO
AND CONFUSINGLY SIMILAR TO COMPLAINANT'S SERVICE MARKS.
<my-seasons.com> is the domain name that is the subject
of this Complaint and this domain name dispute.
Respondent registered the domain name <my-seasons.com>.
Respondent’s domain name registration for
<my-seasons.com> is identical to Complainant’s “MYSEASONS” Marks
except for the addition of the “-”, the hyphen.
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.
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”.
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.
RESPONDENT
HAS NO RIGHTS OR LEGITIMATE INTERESTS IN THE DOMAIN NAME
<MY-SEASONS.COM>.
Respondent registered the domain name <my-seasons.com>
on December 22, 1999 with Network Solutions, Inc.
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.
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.
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>.
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.
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).
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).
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).
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).
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.
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).
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.
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.
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.
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.
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.
Respondent’s website has links to other
sites which sell goods and services that are nearly identical to Complainant’s
Goods and Services.
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.
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.
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.
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).
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.
Upon information and belief, Respondent
intentionally registered the <my-seasons.com> domain name knowing
of Complainant’s “MYSEASONS” Marks and Complainant’s Services.
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.
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.
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.
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).
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:
the domain name registered by the
Respondent is identical or confusingly similar to a trademark or service mark
in which the Complainant has rights;
the Respondent has no rights or
legitimate interests in respect of the domain name; and
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:
the domain name registered by the
Respondent is identical or confusingly similar to a trademark or service mark
in which the Complainant has rights;
the Respondent has no rights or
legitimate interests in respect of the domain name; and
the domain name has been registered and
is being used in bad faith.
Identical and/or Confusingly
Similar
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").
Rights or Legitimate Interests
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).
Registration and Use in Bad
Faith
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: August 20, 2003