Neimansmarcus.com

The timeline behind neimansmarcus.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION The Neiman Marcus Group, Inc. v. Fashionid.com Claim Number: FA0304000155176 PARTIES Complainant is The Neiman Marcus Group, Inc., Dallas, TX, USA (“Complainant”) represented by David J. Steele of Christie, Parker & Hale LLP. Respondent is Fashionid.com, CHINA (“Respondent”). REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <neimansmarcus.com> registered with Onlinenic, 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. James A. Crary as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 18, 2003; the Forum received a hard copy of the Complaint on April 22, 2003. On April 25, 2003, Onlinenic, Inc. confirmed by e-mail to the Forum that the domain name <neimansmarcus.com> is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name. Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, 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 April 25, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 15, 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@neimansmarcus.com by e-mail. Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default. On June 2, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Crary as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <neimansmarcus.com> domain name is confusingly similar to Complainant’s NEIMAN MARCUS mark. 2. Respondent does not have any rights or legitimate interests in the <neimansmarcus.com> domain name. 3. Respondent registered and used the <neimansmarcus.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant holds several domain name registrations with the United States Patent and Trademark Office (“USPTO”) for the NEIMAN MARCUS mark (Reg. No. 601,375 registered on January 25, 1955) in relation to high-end clothing. Complainant operates a website at <neimanmarcus.com>, which provides online retailing of Complainant’s fashions. Respondent registered the <neimansmarcus.com> domain name on March 4, 2003. Respondent is using the disputed domain name to redirect Internet traffic to <domainsponsor.com>, a portal website. DISCUSSION Paragraph 15(a) of 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." In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar Complainant has established its rights in the NEIMAN MARCUS mark through registration with the USPTO and continuous use in commerce since 1907. Respondent’s <neimansmarcus.com> domain name is confusingly similar to Complainant’s mark because the disputed domain name appropriates Complainant’s entire mark and merely adds the letter “s” between the two words of the mark and the generic top-level domain (gTLD) “.com” to the end of the mark. Neither the addition of the letter “s” nor the gTLD “.com” sufficiently differentiate the disputed domain name from the Complainant’s mark with regard to Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Blue Sky Software Corp. v. Digital Sierra Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to Complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference"). The Panel finds that Complainant has established Policy ¶ 4(a)(i). Rights or Legitimate Interests Respondent has not submitted a Response to Complainant’s allegations. Thus, the Panel is permitted to accept all of the reasonable allegations and inferences in the Complaint as true. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence). Furthermore, the Panel may presume that Respondent lacks any rights to or legitimate interests in the disputed domain name because of Respondent’s failure to answer the Complaint. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because the Respondent never submitted a response or provided the Panel with evidence to suggest otherwise). Respondent is using the <neimansmarcus.com> domain name to redirect Internet traffic to <domainsponsor.com>, a portal website. The use of a domain name confusingly similar to a famous mark to divert Internet traffic to a commercial website is not 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 Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that use of Complainant’s mark “as a portal to suck surfers into a site sponsored by Respondent hardly seems legitimate”); see also 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 the Complainant’s mark by redirecting Internet traffic to its own website). Respondent has offered no proof and there is no evidence in the record that indicates Respondent is commonly known by NEIMANS MARCUS or <neimansmarcus.com>. Thus, Respondent has failed to demonstrate that it has rights to or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Great S. Wood Pres., Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding that Respondent was not commonly known by the domain name <greatsouthernwood.com> where Respondent linked the domain name to <bestoftheweb.com>). Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established. Registration and Use in Bad Faith Respondent is engaged in a practice commonly referred to as “typosquatting.” Typosquatting involves the registration of common misspellings of famous marks and the diversion of Internet users who misspell famous marks for commercial gain. Typosquatting has been recognized as evidence of bad faith with regard to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball Leagues 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 Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant). Moreover, Respondent is using the <neimansmarcus.com> domain name to divert Internet traffic to a portal website. Respondent’s use of a domain name confusingly similar to a famous mark to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s mark is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain). The Panel finds that Complainant has established Policy ¶ 4(a)(iii). DECISION Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <neimansmarcus.com> domain name be TRANSFERRED from Respondent to Complainant. James a. Crary, Panelist Dated: June 10, 2003 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.