WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sportsman’s Warehouse, Inc. v. Fundacion Private Whois / PPA Media Services
Case No. D2012-1284
1. The Parties
The Complainant is Sportsman’s Warehouse, Inc of Utah, United States of America, represented by Lindquist & Vennum, PLLP, United States of America.
The Respondent is Fundacion Private Whois of Panama / PPA Media Services of Santiago, Chile.
2. The Domain Name and Registrar
The disputed domain name <sportsmenwarehouse.com> (the “Domain Name”) is registered with Internet.bs Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 22, 2012. On June 25, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 29, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 29, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on June 29, 2012.
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” 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 the Respondent of the Complaint, and the proceedings commenced on July 3, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 23, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 24, 2012.
The Center appointed David Stone as the sole panelist in this matter on August 2, 2012. 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 owns and operates retail outdoor goods stores across the US. Its stores turnover approximately USD 290 million of sales annually. The Complainant has used the mark SPORTSMAN’S WAREHOUSE since 1994 and owns 11 US federal and state registrations for SPORTSMAN’S WAREHOUSE and SPORTSMAN’S WAREHOUSE-formative trademarks.
The Complainant has owned the domain name <sportsmanswarehouse.com> since December 21,1999 and has operated its website located at “www.sportsmanswarehouse.com” since that date.
The Respondent registered the Domain Name <sportsmenswarehouse.com> on July 25, 2003. At the date of the Complaint the Respondent was operating a website at “www.sportsmenswarehouse” displaying links to websites of third party vendors of outdoor clothing and equipment.
The Complainant sent a cease and desist letter to the Respondent via e-mail and certified US mail through the address provided by the Registrar on April 17, 2012 and received no response.
5. Parties’ Contentions
The Complainant claims that it has rights in the SPORTSMAN’S WAREHOUSE trademark as a result of its registered trademarks and/or through extensive use.
The Complainant claims that the Domain Name is confusingly similar to the SPORTSMAN’S WAREHOUSE trademark because the Domain Name <sportsmenswarehouse.com> is a single-letter misspelling of the Complainant’s trademark with the exchange of a single letter “a” for the letter “e” and that the Domain Name is nearly phonetically and visually identical to the Complainant’s trademark. The Complainant states that the Respondent deliberately selected the Domain Name because it is a misspelling of the Complainant’s SPORTSMAN’S WAREHOUSE trademark and this results in the diversion of confused Internet users intending to find the Complainant’s “www.sportsmanswarehouse.com” website.
The Complainant submits that the Respondent has no rights or legitimate interests with respect to the Domain Name. The Complainant states there has been no evidence of the Respondent’s use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services. The Complainant submits that there is no evidence that the Respondent is commonly known by the Domain Name, nor has the Respondent used or acquired trademark rights in the trademark SPORTSMAN’S WAREHOUSE or SPORTSMAN WAREHOUSE prior to its registration of the confusingly similar Domain Name <sportsmenswarehouse.com>. Finally the Complainant submits that no evidence exists that the Respondent is making legitimate, noncommercial or fair use of the Domain Name but, to the contrary, it uses the Domain Name to collect advertising revenue by trading upon the Complainant’s good name and trademarks.
The Complainant submits that the Domain Name was registered and is being used in bad faith. The Complainant states that the selection and use of the Domain Name is specifically and intentionally designed to confuse and divert Internet users intending to find Complainant’s “www.sportsmanswarehouse.com” website and that this constitutes typosquatting. Furthermore, the Complainant states that the Respondent’s operation of its website at “www.sportsmenswarehouse.com” is an attempt to trade on the Complainant’s trademarks by displaying advertisements for the same goods offered for sale by the Complainant under its trademark and that this constitutes evidence of bad faith. Lastly, the Complainant submits that the Respondent’s failure to respond to the Complainant’s allegations of infringing conduct should weigh in favour of a finding of bad faith.
The Complainant requests that the Panel issue a decision that the Domain Name be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove each and all of the following three elements in order to prevail in these proceedings:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(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 Complainant owns US Federal and State Trademark Registrations for SPORTSMAN’S WAREHOUSE and SPORTSMAN’S WAREHOUSE-related marks.
In addition, the Complainant has provided evidence establishing its rights in the SPORTSMAN’S WAREHOUSE mark based on the Complainant’s long-standing use of the mark in relation to its outdoor goods retail stores, the significant sales made in under that mark, and the extensive advertising under the mark.
Following previous UDRP panels, a domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name (Humana Inc. v. Cayman Trademark Trust, WIPO Case No. D2006-0073; and Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator, WIPO Case No. D2008-1302). The Panel finds that the Domain Name is an obvious misspelling of the Complainant’s SPORTSMAN’S WAREHOUSE trademark because it exchanges the single letter “a” for the letter “e”.
The Panel concludes the Domain Name is confusingly similar to the Complainant’s trademark SPORTSMAN’S WAREHOUSE.
B. Rights or Legitimate Interests
The Respondent has failed to submit a Response and has failed to demonstrate pursuant to paragraph 4(c) of the Policy any rights or legitimate interest in the Domain Name, or to rebut the Complainant’s prima facie case. The Respondent is not an authorized agent of the Complainant and there is no connection between the Respondent and the Complainant giving rise to a license or permission from the Complainant to use the Domain Name which is confusingly similar to the Complainant’s SPORTSMAN’S WAREHOUSE trademark. Further there is no evidence that the Respondent is known by the Domain Name.
The Panel concludes that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
As the Complainant has described and provided in its Complaint, the Respondent has no relationship with the Complainant or any legitimate purpose to use any of the Complainant’s trademarks.
The SPORTSMAN’S WAREHOUSE mark has been registered in Idaho since February 8, 1999. The Complainant also owns US Federal and other State Trademark Registrations which precede the date of the Respondent’s registration of the Domain Name. In addition, the Complainant has established that it has, through extensive use, unregistered rights in the SPORTSMAN’S WAREHOUSE mark which precede the Respondent’s registration of the Domain Name.
The Panel therefore finds that the Respondent was likely aware of the Complainant’s trademark and intentionally chose a misspelling of it for its Domain Name. It is well-settled that the practice of typosquatting may, of itself, be evidence of bad faith registration of a domain name (ESPN, Inc v. XC2, WIPO Case No. D2005-0444; and Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816).
This evidence of bad faith is reinforced by the fact that the Respondent registered the Domain Name with the intention of diverting Internet users seeking the Complainant’s website for the purposes of commercial gain by creating a likelihood confusion with the Complainant’s trademark SPORTSMAN’S WAREHOUSE. This is a ground of bad faith specified in paragraph 4(b)(iv) of the Policy (see Expedia, Inc. v. Collazo, WIPO Case No. D2003-0716; and Humana Inc. v. Domain Deluxe, WIPO Case No. D2005-0231).
Under paragraph 4(b) of the Policy, only one of the circumstances need to be specified in order to establish evidence of the Respondent’s registration and use of the Domain Name in bad faith.
The Panel concludes that the Domain Name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <sportsmenswarehouse.com> be transferred to the Complainant.
Date: August 16, 2012