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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fry’s Electronics Inc. v. N.A. Domain Administrator
Case No. D2007-0340
1. The Parties
The Complainant is Fry’s Electronics Inc., California Corporation, United States of America, represented by Foley McIntosh Frey & Claytor, United States of America.
The Respondent is N.A. Domain Administrator, West Bay, Null WB, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <frys.net> is registered with Best Site Names, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 7, 2007. On March 8, 2007, the Center transmitted by email to Best Site Names, Inc. a request for registrar verification in connection with the domain name at issue. On March 10, 2007, Best Site Names, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 8, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default.
The Center appointed Adam Samuel as the sole panelist in this matter on May 3, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant has owned a trademark in FRY’S since October 1997, and FRY’S ELECTRONICS since January 1997. It sells computers and electronic components and related items in large stores and over the Internet through its website “www.frys.com. It adopted its current name in 1985, and has traded under it ever since.
5. Parties’ Contentions
The Complainant makes a number of points, listed below.
The Complainant’s products, trade name, marks and domain name enjoy an excellent reputation and it has built up valuable goodwill in it. Its extensive use and promotion of its trademarks, trade name and domain name have made them well known, identifying and distinguishing good and services emanating from, symbolizing or authorized by the Complainant. There is a widespread public perception that the name “Frys”, or variations thereof, when heard or used in the context of a seller of electronic goods, refers or relates to the Complainant.
Domain name suffixes must be excluded from consideration of “confusing similarity” because they are merely the functional component of the domain name. Once this is done, the domain name in issue is “Frys” and the context is the same as the Complainant’s business, the sale of electronic goods.
If the Complainant shows prima facie evidence of the absence of any right or legitimate interest in respect of the domain name, the burden shifts to the Respondent to prove the elements in paragraph 4(c) of the Policy. It has failed to discharge this.
The Respondent offers for sale many of the same electronic products that the Complainant has sold for years in its stores and through its Internet site. The link to “laptop computers” lists links to sites operated by the Complainant’s competitors.
The Respondent intentionally attempted to attract Internet users to its site by creating a likelihood of confusion concerning the sponsorship, affiliation or endorsement of the Respondent’s site. Users may wrongly assume that the Respondent’s site is sponsored by, affiliated with or endorsed by the Complainant. This can be seen from the near identity and/or similarity of the domain name in issue with the Complainant’s trademarks and domain name and because the Respondent’s site offers goods like those sold by the Complainant. Bad faith is also shown by the fact that the Respondent’s site is a pay per click sponsored site with a number of links to electronic products sold by the Complainant’s competitors.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which it has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant owns a trademark registration for the name FRY’S. The domain name in issue is that word minus the apostrophe and with the addition of “.net”. Apostrophes are generally not reproduced in domain names and the “.net” must be disregarded since it is merely the functional component of the domain name. The first point is supported by the Complainant’s use of a domain name without an apostrophe to sell its goods. The word “Frys” in English suggests a missing apostrophe anyway. In addition, anyone familiar with the Complainant’s business would probably find the appearance of a domain name using the four letters in question confusingly similar with its trademark.
For these reasons, the Panel finds that the domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Respondent is not called “Frys” or anything similar and does not appear to trade under that name. There is no evidence that the Complainant has authorized the Respondent to use any of its trademarks. There is no evidence to suggest that the Respondent has ever asserted any rights or legitimate interests in the domain name. For these reasons, and in view of the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
The domain name in issue sells electronic goods. Currently, the click-throughs on the website do not work. So, it is impossible for the Panel to verify independently what products are being sold. However, the Complaint includes a printout from a page of the website dated February 21, 2007. This provides links to websites of a number of the Complainant’s competitors.
As pointed out above, the domain name “Frys” has no independent meaning apart from the Complainant’s trademark name minus the apostrophe. (The only other alternative would be that it was a misspelling of the word “fries”. That would be more convincing if the products marketed here were not electronic rather food-related.) Customers seeking electronic, goods in the United States of America that see the domain name in issue, could easily be led into confusion as to the likely source, sponsorship, affiliation or endorsement of the Respondent’s website. In the absence of any explanation from the Respondent, the Panel finds that this was intended, paragraph 4(a)(iii) of the Policy.
The fact that the Respondent is using the domain name in issue to divert customers to competitors of the Complainant is further evidence of bad faith.
The panel in Banca di Roma S.p.A. v. Unasi Inc. a/k/a Domaincar,
WIPO Case No. D2006-0068, agreed that this type of behaviour constituted bad faith. It said:
“The Respondent is linking the disputed domain name to a portal site offering sponsored links. There, Internet users have access to a variety of goods and services, among them websites of the Complainant’s competitors. As described by the panelist in Deloitte Touche Tohmatsu v. Henry Chan,
WIPO Case No. D2003-0584, such websites offer a revenue program which pays domain name owners (in the particular case) “50% of all revenues generated from searches, popunders, popups, and exit popups” in respect of users directed to its website through the participants domain name.
This leads the Panel to the conclusion that the Respondent registered the domain name at issue to divert Internet users seeking information about the Complainant’s products to a portal site offering sponsored links and to share in revenues obtained from the diverted traffic. Even if internet users would realize that the Respondent’s website is not connected with the trademark owner, the Respondent is liable to profit from their initial confusion, since they may still be tempted to click on sponsored links. In many previous UDRP decisions…such exploitation of trademarks to obtain click-through commissions from the diversion of internet users was held of use in bad faith … In the absence of any reply of the Respondent, the Panel can make a reasonable inference that the Respondent’s website generates revenue for the Respondent in that manner.”
For similar reasons, the Panel concludes that the Respondent has both registered and used the domain name in issue in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <frys.net> be transferred to the Complainant.
Date: May 17, 2007