Celluarsouth.com

The timeline behind celluarsouth.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.

NATIONAL ARBITRATION FORUM DECISION Cellular South, Inc. v. kim sang hyun Claim Number: FA0808001220060 PARTIES Complainant is Cellular South, Inc. (“Complainant”), represented by Charles L. McBride, Jr., of Brunini, Grantham, Grower and Hewes, PLLC, Mississippi, USA. Respondent is kim sang hyun (“Respondent”), Korea. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <celluarsouth.com>, registered with Korea Information Certificate Authority, Inc. d/b/a Domainca.com. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on August 12, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 15, 2008. On August 21, 2008, Korea Information Certificate Authority, Inc. d/b/a Domainca.com confirmed by e-mail to the National Arbitration Forum that the <celluarsouth.com> domain name is registered with Korea Information Certificate Authority, Inc. d/b/a Domainca.com and that Respondent is the current registrant of the name. Korea Information Certificate Authority, Inc. d/b/a Domainca.com has verified that Respondent is bound by the Korea Information Certificate Authority, Inc. d/b/a Domainca.com 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 August 29, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 18, 2008 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@celluarsouth.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On September 29, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 <celluarsouth.com> domain name is confusingly similar to Complainant’s CELLULAR SOUTH mark. 2. Respondent does not have any rights or legitimate interests in the <celluarsouth.com> domain name. 3. Respondent registered and used the <celluarsouth.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant has been in the business of offering cellular telephone products and services since 1988. Complainant owns and operates the <cellularsouth.com> domain name, and registered the CELLULAR SOUTH mark with the United States Patent and Trademark Office on July 25, 1989 (Reg. No. 1,549,516). Respondent registered the <celluarsouth.com> domain name on November 27, 2005, and uses it to display a list of hyperlinks promoting competing cellular telephones and related services. 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”). 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’s USPTO registration for the CELLULAR SOUTH mark adequately establishes Complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Diners Club Int’l Ltd. v. Rulator Corp., FA 967678 (Nat. Arb. Forum June 5, 2007) (conferring rights in the DINERS mark to the complainant based upon its USPTO trademark registration); see also Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb. Forum Apr. 14, 2006) (finding that the complainant’s registration with the USPTO for the ENTERPRISE mark established the complainant’s rights in the mark). Respondent’s <celluarsouth.com> domain name contains Complainant’s CELLULAR SOUTH mark with the removal of the last “l” in “cellular.” This misspelling of Complainant’s mark can be considered a common typographical error made by Internet users, and it does not remove the disputed domain name from the realm of confusing similarity. Rather, the overall impression of the <celluarsouth.com> domain name remains Complainant’s mark. The addition of the top-level domain “.com” is without relevance in this proceeding, so the Panel finds that Respondent’s <celluarsouth.com> domain name is confusingly similar to Complainant’s CELLULAR SOUTH mark pursuant to Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Nevada State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has alleged that Respondent lacks rights and legitimate interests in the <celluarsouth.com> domain name. The Panel finds that Complainant has established a prima facie case in support of its allegations, thus shifting the burden of proof to Respondent. Although Respondent has not responded to the Complaint, the Panel will nevertheless examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). The WHOIS domain name registration information for the <celluarsouth.com> domain name identifies Respondent as “kim sang hyun,” and there is no other evidence in the record indicating that Respondent may be commonly known by the disputed domain name. The Panel therefore concludes that Respondent lacks rights and legitimate interests in the <celluarsouth.com> domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Respondent’s <celluarsouth.com> domain name redirects Internet users to a website that promotes cellular telephones and related services that compete with Complainant’s business. The Panel presumes that Respondent earns click-through fees for each redirected Internet user that clicks on one of these links. The Panel therefore concludes that Respondent’s registration and use of the <celluarsouth.com> domain name constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Royal Bank of Scot. Group plc v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites). The Panel also finds that Respondent’s <celluarsouth.com> domain name takes advantage of a typographical error that may be easy for Internet users to make. This constitutes typosquatting, and is further evidence of Respondent’s lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that the respondent had no rights or legitimate interests in the typosquatted <microssoft.com> domain name because it was a mere misspelling of the complainant’s MICROSOFT mark); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent is using the <celluarsouth.com> domain name to reroute Internet users to a website displaying hyperlinks advertising cellular telephone goods and services sold by Complainant’s competitors. This use of the disputed domain name is likely to disrupt Complainant’s business by diverting potential customers to Respondent’s website. The Panel finds that such registration and use of the <celluarsouth.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Svcs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name resolved to a website that displayed commercial links to the websites of the complainant’s competitors); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)). Respondent’s <celluarsouth.com> domain name, which is confusingly similar to Complainant’s CELLULAR SOUTH mark, is likely to cause confusion among customers searching for Complainant’s cellular telephones and related services. Specifically, customers may become confused as to the affiliation, endorsement, or sponsorship of the competing goods and services advertised by the links on Respondent’s website. Respondent presumably receives click-through fees for each misdirected Internet user, and is therefore attempting to commercially benefit from this likelihood of confusion between Respondent’s domain name and the goodwill associated with Complainant’s CELLULAR SOUTH mark. Therefore, the Panel finds that Respondent’s registration and use of the <celluarsouth.com> domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site). Respondent’s <celluarsouth.com> domain name slightly misspells Complainant’s CELLULAR SOUTH mark by omitting the last “l” in “cellular.” The Panel finds that this constitutes typosquatting, which constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). In Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003), the panel held that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant’s DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii). Similarly, in Vanguard Group, Inc. v. IQ Management Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004), the panel concluded that “[b]y engaging in typosquatting, [r]espondent has registered and used the <vanguard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).” Like the domain names in Dermalogica and Vanguard, Respondent’s <celluarsouth.com> domain name can be characterized as typosquatting because Respondent is trying to benefit from a potential typographical error made by Internet users. Therefore, the Panel finds that Respondent registered and is using the <celluarsouth.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. 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 <celluarsouth.com> domain name be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: October 13, 2008 Click Here to return to the main Domain Decisions Page. 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Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.