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.

 

Respondent’s overall conduct, as well as specific acts, as more fully set forth below, are evidence that Respondent has registered the domain name <my-seasons.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).

 

Complainant also believes that using the <my-seasons.com> domain name is evidence of bad faith registration in and of itself, because the Respondent’s domain name is merely the Complainant’s “MYSEASONS” Mark with the addition of the hyphen between the “MY” and the “SEASON” Mark.  This is a form of typo-squatting.

 

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

 

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