WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
LTD Commodities, Inc. v. Registrant info@ 9876543210/Registrant
Case No. D2002-1062
1. The Parties
The Complainant is LTD Commodities, Inc., Bannockburn, IL 60015, United States of America, represented by Law Offices of Alter and Weiss of United States of America.
The Respondent is Registrant info@ 9876543210/Registrant, ShenZhen, China.
2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. dba China-C. of 2315 26th Avenue San Francisco, CA 94116.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 20, 2002. In November 20, 2002, the Center transmitted by email to OnlineNic, Inc. dba China-C a request for registrar verification in connection with the domain name at issue. On November 22, 2002, OnlineNic, Inc. dba China-C 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 27, 2002. The Center verified that the Complaint together with the amendment to 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 November 28, 2002. In accordance with the Rules, paragraph 5(a), the due date for the Respondent to submit a Response was December 18, 2002. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on December 19, 2002.
The Center appointed Hariram Jayaram as the sole panelist in this matter on December 31, 2002. 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
4.1 Complainant
In its complaint, the Complainant states that it has been in business since 1963, in the field of catalog mail order distributorships for general merchandise including toys, housewares and gifts. This catalog has become very well-known among consumers and cost millions of dollars each year to print, purchase, make and advertise. The Complainant also conducts business from its commercial website at , which has been in existence since May 31, 1996. The Complainant does 60% of its business from this site. LTD COMMODITIES, INC. is a registered service mark filed in the United States Patent and Trademark Office on February 18, 1998, bearing registration number 2315412 and used since 1978. Additionally, the Complainant owns the mark LTD COMMODITIES, which is a registered service mark filed on July 20, 1998, in the United States Patent and Trademark Office bearing registration number 2409188 and used since 1963. The Complainant has provided online copies of registration of these marks.
4.2 Respondent
The address of the Respondent as provided by the Registrar and the Complainant is 31/F Dotcom House, ShenZhen, China 86 of China.
5. Parties� Contentions
A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to the Complainant's marks "LTD COMMODITIES, INC." and "LTD COMMODITIES" and its domain name . The only difference is that the letter "d" and the letter "t" are reversed to appear as "ldt" in the disputed domain name . The reversal of the order of letters may be a simple misspelling or typographical error that an Internet user may make while typing out the domain name. According to the Complainant, this reversal of letters constitutes typosquatting since they are all confusingly similar and used in bad faith.
The Respondent should be considered as having no rights or legitimate interests in the disputed domain name because it has no registration of the mark "LDT COMMODITIES", either in whole or in part and does not use this name on any of the commercial advertising web pages which result when the Respondent's domain name is entered. The Complainant has found no records indicating that the Respondent is involved with any legitimate enterprise under a name identical or confusingly similar to the mark in which the Complainant has rights. It is not even clear as to who owns the "Top Search Engine in the World" which appears when a person enters the domain name .
The disputed domain name should be considered as having been registered and used in bad faith because by registering and using the domain name, the Respondent intentionally and for financial gain has attracted Internet users to sites that promote online advertising and online gambling by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the registrant's web site or location or of a product or service on the registrant's web site or location. The Complainant's domain name is a treasure and is of great value to those who are trying to siphon off the heavy volume which goes to the Complainant's domain name without having paid anything other than the domain name registration fee which is inconsequential when compared to the several millions of dollars the Complainant spends in advertising.
The speed with which the disputed domain name has been employed and used is further testimony of the Respondent's bad faith intent to reap where it has not sown. The Complainant has been involved with the Respondent in a previous WIPO proceeding, WIPO Case No. D2002-0611, in which the Respondent was determined to be cybersquatting on the Complainant's registered service mark. The fact that the Complainant has been involved with the Respondent before and the Respondent knows of the Complainant's name and business but still chose to register the disputed domain name , is a further indication of bad faith.
The disputed domain name was originally part of an earlier domain name dispute with Popular Enterprises, which was accused of cybersquatting by the Complainant. Popular Enterprises agreed to and did assign the disputed domain name as well as others to the Complainant in settlement of the claim. However, the registrations of these domain names had expired because Popular Enterprises, which was in control of the names at the relevant time, did not attend to the renewals with the Registrar concerned. The short duration of registration that the Complainant had with the assigned domain names came about on account of Popular Enterprises receiving notice of the expiration and not passing this information to the Complainant. This caused the domain names to be lost and immediately picked up by the Respondent after expiry of the time for renewal of the domain names. The Complainant asserts that it is vigilant in protecting its rights and would not have let these domain names go if it had received proper notice of the expiry dates. The Complainant has a successful history of initiating WIPO proceedings against cybersquatters of domain names.
This proceeding has become necessary: The Complainant gave actual notice by way of a cease and desist letter to the Respondent on November 6, 2002, regarding its cybersquatting. The Respondent continues to act in bad faith.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has trade mark registrations for "LTD COMMODITIES" and "LTD COMMODITIES, INC." in the United States of America. It is also the common law owner of these marks, having used the mark "LTD COMMODITIES" since 1963, and the mark LTD COMMODITIES, INC. since 1978. The Respondent has registered, as its domain name, .
"ldt" is merely a misspelling of "ltd". The Panel finds that the disputed domain name is confusingly similar to the Complainant's registered marks.
B. Rights or Legitimate Interests
As to rights and legitimate interests, the Complainant contends that the Respondent has not registered the disputed domain name or a part of it as a trade mark.
The Respondent has not availed itself of the opportunity to rebut the Complainant's assertions. It has not for example as stated in paragraph 4 (c) of the Policy, shown:
(i) its use of, or demonstrable preparations to use the disputed domain name or a name corresponding to the said domain name in connection with a bona fide offering of goods or services before any notice to it of the dispute; or
(ii) that it has been commonly known by the disputed domain name even if it has acquired no trademark or service mark rights; or
(iii) that it is making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue.
If a respondent does not submit a response, in the absence of exceptional circumstances, the Panel is entitled under paragraph 14(b) of the Rules to:
"�draw such inferences �as it considers appropriate".
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name .
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out non-exhaustive circumstances, which serve as evidence of the registration and use of a domain name in bad faith by the Respondent. The Complainant has alleged that the Respondent is aware of the Complainant's name and business from a previous WIPO proceeding, WIPO Case No. D2002-0611 commenced by the Complainant against Fashion ID for cybersquatting. The Respondent in this Complaint is "Registrant info@ 9876543210". Not only does the word "fashionid" appear as part of this name, the Respondent in this case has the same address as the Respondent in the said previous WIPO proceeding. The Panel finds that the Respondent must have known of the Complainant's existence and yet it chose for its domain name, a word which is a misspelling of the Complainant's name and trade marks.
When a person keys in the disputed domain name , he is a taken to a web site called "Top Search Engine in the World". This web site promotes inter-alia online gambling. It is the Complainant's contention that the Respondent has intentionally attempted to attract for commercial gain, Internet users to such an online location creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its web site or location or of a product or service on its web site or location. In the absence of a response from the Respondent, the Panel is not in a position to come to a different conclusion.
The Panel notes the contention of the Complainant that the disputed domain name earlier existed in the name of Popular Enterprises, which assigned it to the Complainant. The notice of expiry of this registration was sent to Popular Enterprises by the Registrar concerned and not to the Complainant. Consequently, the renewal was not effected and the registration expired. The disputed domain name would have legitimately been the Complainant's domain name had it been renewed. Besides, the Complainant has its own domain name . The closeness of the disputed domain name to the Complainant's domain name is bound to disrupt the business of the Complainant because all that it takes is, for a person surfing the internet to make a simple error of typing the letters instead of , to be taken to the Respondent's web site rather than the Complainant's. Further, prior to the filing of the Complaint, the Complainant has notified the Respondent of its rights in a cease and desist letter but the Respondent has ignored it.
The Panel's finding is that there is bad faith on the part of the Respondent.
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 be transferred to the Complainant.
Hariram Jayaram
Sole Panelist
Dated: January 14, 2003
Full & Egal Universal Law Academy