WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Carol House Furniture, Inc. v. Above.com Domain Privacy / Host Master, Transure Enterprise Ltd
Case No. D2010-2102
1. The Parties
Complainant is Carol House Furniture, Inc. of Maryland Heights, Missouri, United States of America, represented by Senniger Powers LLP, United States of America.
Respondent is Above.com Domain Privacy of Beaumaris, Victoria, Australia / Host Master, Transure Enterprise Ltd of Tortola, Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <carrollhousefurniture.com> is registered with Above.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2010. On December 7, 2010, the Center transmitted by email to Above.com, Inc. a request for registrar verification in connection with the disputed domain name. On December 8, 2010, Above.com, Inc. transmitted by email to the Center its verification response, disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on December 9, 2010, providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on December 11, 2010.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on December 13, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 2, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 5, 2011.
The Center appointed Roberto Bianchi as the sole panelist in this matter on January 19, 2011. 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
Complainant has been using the CAROL HOUSE FURNITURE mark in connection with its business of sale of furniture since as early as 1965. In September 21, 1970, Complainant was incorporated as Carol House Furniture, Inc.
Complainant owns a United States federal registration for the trademark CAROL HOUSE FURNITURE (stylized), Reg. No. 3595641, Reg. Date March 24, 2009, filed on July 3, 2007. International Class 20. Goods and Services: Bedroom furniture; Computer furniture; Entertainment centers; Furniture; Furniture chests; Furniture for house, office and garden; Furniture partitions; Furniture, namely, dressers; Furniture, namely, wall units; Furniture, namely, wardrobes; Living room furniture; Mirrors; Office furniture; Recliners; Screens; Tables. First used/first used in commerce: 1965.
Complainant also owns a Missouri State service mark registration for CAROL HOUSE FURNITURE, Reg. No. S017573, Reg. Date March 1, 2007, in connection with Class 42 - Miscellaneous, having first been used by registrant at least in 1965 and first used in Missouri at least in 1965.
On December 12, 2009, Respondent registered the disputed domain name.
On January 27, 2011, the Panel visited the website at the disputed domain name. The initial web page, entitled “Bedroom Furniture”, contains “sponsored listings” such as “Gifts & Home Décor”, “We have something for all ages”, “Indoor & outdoor Ideas for all”, “www.starrproducts.net”, “China Furniture”, “An incredibly powerful B2B website Better Sourcing”, “www.furnitureinchina.com”, “Bedroom Furniture”, “Bedroom Set”, “100000+ Quality Cheap products Find Reliable Asian Manufacturers”, “www.asianproducts.com”, etc. The web page also showed automatically generated search results, such as “Classic Beds at Total Bedroom Furniture”, “Contemporary Bedroom Furniture”, etc. The sponsored listings and search results resolved to websites of furniture manufacturers or retailers not related to Complainant and offering products and services apparently competing with Complainant.
5. Parties’ Contentions
In its Complainant, Complainant contends as follows:
The disputed domain name is confusingly similar to Complainant’s CAROL HOUSE FURNITURE mark. The entire portion of the disputed domain name that precedes the top level domain is an exact match with Complainant’s mark with the exception of the double “r” and double “l” in “Carroll”, which is a classic example of typo-squatting.
Respondent has not used or made any preparations for use of the disputed domain name in connection with a bona fide offering of goods or services. The disputed domain name directs to a website that is deceptively designed to appear to be a legitimate website for selling furniture, but instead it is merely a parking site that is being used to deceive consumers and direct them to competitors of Complainant and to other parties. This is not a bona fide offering of goods and services. Respondent has no relationship whatsoever with Complainant, and Complained has never authorized Respondent to use the disputed domain name. Respondent has not at any time been commonly known by the disputed domain name. Respondent has not made a legitimate noncommercial or fair use of the disputed domain name.
Respondent registered the disputed domain name more than forty years after Complainant first used its CAROL HOUSE FURNITURE mark, and after Complainant obtained its state service mark. Respondent has used the disputed domain name to attract customers to its website, which is evidence of bad faith registration and use. Respondent gains revenue by obtaining click-through commissions from the owners of the websites to which it offers links. Such use of Complainant’s mark has been found to be evidence of bad faith registration and use. Furthermore, Respondent’s website links direct Internet users to sites offering products competing with Complainant’s products.
Respondent did not reply to Complainant’s contentions, and is in default.
6. Discussion and Findings
Under Policy, paragraph 4(a), a complainant must make out its case that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) 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
Complainant has shown that it owns the federally registered CAROL HOUSE FURNITURE mark. See section on “Factual Background” above.
The Panel agrees with Complainant that the double “r” and double “l” in “Carroll” in the disputed domain name is a misspelling of “Carol House” and as such, it is an example of classical typo-squatting. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s CAROL HOUSE FURNITURE mark.
B. Rights or Legitimate Interests
Complainant contends that Respondent has not used nor made any preparations for use of the disputed domain name in connection with a bona fide offering of goods or services, that the disputed domain name directs to a parking site used to deceive consumers and direct them to competitors of Complainant and to other parties, that Respondent has no relationship with Complainant, that Complained never authorized Respondent to use the disputed domain name, that Respondent has not at any time been commonly known by the disputed domain name and that Respondent has not made a legitimate noncommercial or fair use of the disputed domain name.
Taken together, these contentions and supporting evidence (none of which have been contested by Respondent), amount to a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name.
It is the consensus view of UDRP panels that once a prima facie case is made, a respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See paragraph 4.6 of the WIPO of WIPO Panel Views on Selected UDRP Questions. Since Respondent has not submitted any comments or evidence whatsoever, the Panel concludes that Respondent lacks any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Respondent registered the disputed domain name eight months after the registration date of the United States federally registered CAROL HOUSE FURNITURE mark of Complainant and over forty-four years after Complainant’s first use of this mark in 1965. Complainant has submitted printouts of graphic advertising of 1988 and 2009, showing that Complainant’s mark has been used in connection with sales of furniture. Complainant has also provided details of substantial advertising expenditures in support of its CAROL HOUSE FURNITURE mark, and sales of goods under this mark (over USD 28 million per year). Declaration of Mr. Brook D. Dubman, President of Complainant, June 8, 2010. This evidence leads the Panel to infer that Respondent knew or should have known of Complainant and its CAROL HOUSE FURNITURE products and services at the time of registering the disputed domain name, and that this domain name registration was made with Complainant’s mark in mind.
Complainant has also shown that Respondent is using the disputed domain name in a parking website, “www.carrollhousefurniture.com“, which contains numerous “sponsored listings” and automated search results directing to websites where products and services competing with Complainant’s products and services are being offered, and that Respondent is presumably attempting at obtaining revenue from a “click-through” or similar system. The Panel independently confirmed this fact on January 27, 2011. See section on “Factual Background” above. This is a use in bad faith as it free rides on Complainant’s mark and goodwill. See Nintendo of America, Inc. v. Pokemonplanet.net, Jerry Radl, and Fusion Media Solutions, Inc., WIPO Case No. D2001-1020 (“The format of the site (and the <pokemonplanet.com> site) strongly suggests that they obtained ‘click-through’ revenues from the site, […] another improper use of the [c]omplainant’s mark for commercial purposes.” See also Nokia Corporation v. Nokiagirls.com a.k.a IBCC, WIPO Case No. D2000-0102 (click-through scheme described as a “free ride” on complainant’s marks).
The Panel concludes that Respondent has intentionally attempted to attract, for commercial gain (seeking click-through revenue), Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s CAROL HOUSE FURNITURE mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location, a circumstance of bad faith registration and use pursuant to Policy, paragraph 4(b)(iv). Thus, the Panel finds that Respondent has registered and used the disputed domain names 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 <carrollhousefurniture.com> be transferred to Complainant.
Dated: February 1, 2011