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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Abercrombie & Fitch Trading Co. v. Digi Real Estate Foundation

Case No. D2007-0440

 

1. The Parties

The Complainant is Abercrombie & Fitch Trading Co., of New Albany, Ohio, United States of America, represented by Howrey LLP, United States of America.

The Respondent is Digi Real Estate Foundation, of Panama City, Panama.

2. The Domain Name and Registrar

The disputed domain name <holisterco.com> is registered with eNom, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 22, 2007. On March 23, 2007, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the domain name at issue. On March 26, 2007, eNom, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 April 2, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 22, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 24, 2007.

The Center appointed Christopher J. Pibus as the sole panelist in this matter on May 7, 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 been manufacturing and selling apparel and related accessories in the United States of America since 1892 and has used the name HOLLISTER CO. in the United States of America since July 2000. The Complaint’s worldwide sales of HOLLISTER CO. branded products has since 2000 exceeded $2.4 billion dollars. In the year 2004, Complainant sold $588 million (U.S. dollars) of HOLLISTER CO. branded goods worldwide. The Complainant has invested a substantial amount of money advertising and promoting the HOLLISTER CO. brand. The Complainant has also registered many domain names that contain the words “hollister co.”, such as <hollisterco.com>, <hollisterandco.com>, and <hollisterclothing.com>.

The Complainant owns two U.S. Trademark Registrations for the mark HOLLISTER CO. for clothing and related accessories, and for retail store services featuring clothing and related personal care products, dating back to 2002. The Complainant also owns 69 trademark registrations for the mark HOLLISTER CO. in over 35 countries around the world.

The Respondent registered the domain name <holisterco.com> on July 26, 2004. At the date of the Complaint, the Respondent was operating a website under this name that provides links to other businesses providing clothing and fashion accessories as a “click-through site”.

 

5. Parties’ Contentions

A. Complainant

(a) Identical or Confusingly Similar

The Complainant contends that the domain name <holisterco.com> is confusingly similar to Complainant’s HOLLISTER CO. trademark

(b) Rights or Legitimate Interests

The Complainant contends that the Respondent has no legitimate interest or rights in respect of the domain name <holisterco.com>. The Complainant owns U.S. and international trademark registrations for the HOLLISTER CO. trademark. The Complainant’s rights in the HOLLISTER CO. trademark were well established before the Respondent’s registration of the domain name <holisterco.com>. The Complainant contends that the Respondent’s use of the domain name in connection with a “click-through site” does not establish a legitimate right or interest in the domain name. The Complainant submits that the Respondent is not commonly known by the <holisterco.com> domain name and was never authorized as a dealer, distributor or licensee of the Complainant.

(c) Registered and Used in Bad Faith

The Complainant contends that the domain name <holisterco.com> was registered and is being used in bad faith based on the following factors: (i) knowledge of the Complainant’s continuous use of the HOLLISTER CO. trademark at the time of registration; (ii) registration of a confusingly similar domain name by incorporating the misspelling of the Complainant’s trademark; (iii) use of a confusingly similar domain name for the purpose of monetary gain by providing links to other companies’ products and services through a “click-through” scheme; (iv) The Respondent’s pattern of registering domain names incorporating well-known and famous trademarks of others, in which it does not have legitimate rights and using the names for commercial gain; (v) The Respondent’s failure to respond to the Complainant’s cease and desist letter; and (vi) The Respondent’s failure to provide accurate address information on the Whois record.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:

(i) The Domain Name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;

(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 Panel finds that the Complainant has established its rights in the HOLLISTER CO. Trademark, by virtue of the U.S. and international trademark registrations.

The Panel finds that the domain name <holisterco.com> is confusingly similar to the HOLLISTER CO. trademark, as it is virtually identical to the Complainant’s trademark except for the deletion of the letter “L” in the word “hollister”. This form of “typosquatting” does not serve to distinguish a domain name from complainants’ trademarks (see Volkswagen AG v. Digi Real Estate Foundation, WIPO Case No. D2005-0952 and America Online, Inc. v. John Zuccarini, WIPO Case No. D2000-1495).

Therefore, the Panel finds that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

The Panel finds no evidence that the Respondent ever had any legitimate right or interest in the <holisterco.com> domain name. The Respondent does not appear to have been known by the disputed domain name and is not using the domain name in connection with a bona fide offering of goods and services. The Panel finds that the Respondent’s domain name provides links to goods and services of the Complainant’s competitors through what appears to be a “click-through” site. In similar circumstances, prior panels have decided that the use of a confusingly similar domain name in connection with a “click-through site” does not serve to establish a bona fide offering of goods and services. (See The Evening Store v. Henry Chan, WIPO Case No. D2004-0305, and Lilly ICOS LLC v. Saban Mihailovic, WIPO Case No. D2005-0356).

The Panel also accepts that the Complainant never authorized, licensed or permitted the Respondent to use its HOLLISTER CO. trademark.

The Panel is therefore, satisfied that the Complainant has made a prima facie showing of the Respondent’s lack of rights or legitimate interest in the disputed domain name. Once a complainant has made this prima facie showing, the Respondent must come forward with evidence that rebuts this presumption (Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270).

As the Respondent has not filed any evidence in response, the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

The uncontested evidence shows that the Complainant’s trademark HOLLISTER CO. is distinctive and has been known for over 6 years in the United States of America and internationally. The Panel accepts that the mark is widely known and enjoys a reputation both in the U.S. and internationally, as a result of the Complainant’s substantial sales and extensive marketing. The Panel is therefore prepared to infer that the Respondent had actual knowledge of the Complainant’s trademark rights when it registered the <holisterco.com> domain name.

The Panel is also prepared to find that the Respondent registered the domain name and is operating a website for the purposes of monetary gain by providing links to sites of other companies, some of which are direct competitors of the Complainant, in the form of a “click-through” site. Through its practice of typosquatting the Respondent appears to have deliberately traded on the goodwill of the Complainant, by attracting Internet users who inadvertently miss-type the Complainant’s trademark and by diverting Internet traffic intended for the Complainant’s website to the Respondent’s website. In similar circumstances, prior panel decisions have consistently recognized that the registration of domain names which are then used to operate “click-through” sites, can be considered to be evidence of bad faith. (See CareerBuilder, LLC v. Names for Sale, WIPO Case No. D2005-0186 and Air Austral v. WWW Enterprise, Inc., WIPO Case No. D2004-0765).

The Panel notes that there are 15 other UDRP decisions, where panels have decided that the Respondent has registered confusingly similar domain names, without a legitimate right or interest and in bad faith. Accordingly, the Panel is prepared to find that the Respondent has engaged in a pattern of registering and using domain names incorporating marks of others. This provides further support to the finding of bad faith in this matter.

For these reasons, the Panel finds that the Complainant has satisfied the third requirement of paragraph 4(a) of the Policy.

7. Decision

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, <holisterco.com> be transferred to the Complainant.


Christopher J. Pibus
Sole Panelist

Dated: May 22, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0440.html

 

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