WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CouponCabin LLC v. Direct Privacy ID 2320F, Domain Name Proxy Service, Inc.
Case No. D2012-2276
1. The Parties
The Complainant is CouponCabin LLC of Whiting, Indiana, United States of America, represented by Coudert Brothers, United States of America.
The Respondent is Direct Privacy ID 2320F, Domain Name Proxy Service, Inc. of Metairie, Louisiana, United States of America.
2. The Domain Name and Registrar
The disputed domain name <coponcabin.com> (the “Domain Name”) is registered with DNC Holdings, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2012. On November 20, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 21, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 November 22, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was December 12, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 13, 2012.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on January 3, 2013. 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 is a limited liability company organized in November 2010 under the laws of the State of Delaware, United States of America, with a principal place of business located in the State of Indiana, as shown in the online database maintained by the Indiana Secretary of State.
The Complainant’s affiliate and predecessor in interest, CouponCabin, Inc., adopted the COUPONCABIN, COUPON CABIN, and COUPONCABIN.COM marks (the “marks”) in 2002 in connection with its website providing links to online discounts and coupons offered by retailers. In a corporate restructuring, the Complainant acquired all rights and interests in these marks on December 15, 2010, as evidenced by an Assignment Agreement attached to the Complaint.
The Complaint cites the following US trademark registrations:
Dec. 13, 2005
Aug. 11, 2009
Aug. 11, 2009
However, according to the online trademark database maintained by the United States Patent and Trademark Office, the COUPONCABIN registration (No. 3028129) was cancelled on October 12, 2012.
The Complainant’s website at “www.couponcabin.com” offers “one stop shopping” links to coupons and discounts offered by more than 3000 retailers, consisting of national retail chains as well as local stores in many cities across the US. The Complainant also distributes customized email newsletters to subscribers. The Complainant’s service has been the subject of numerous national and local media stories, as reported on the Complainant’s website.
The Domain Name was registered through a domain privacy service in the US on October 17, 2009. The real party in interest has not been disclosed despite service of the Complaint in this proceeding. The Domain Name resolves to what appears to be a pay-per-click (PPC) advertising landing page (the “Respondent’s website”) displaying “sponsored listings” from a variety of retailers, including coupon offers directly competing with those featured on the Complainant’s website.
5. Parties’ Contentions
The Complainant asserts that the Domain Name is confusingly similar to its COUPONCABIN marks and that the Respondent has no rights or legitimate interests in the Domain Name.
The Complainant contends that the Respondent registered and used the Domain Name in bad faith, in a classic example of “typosquatting” intended to mislead Internet users for commercial gain.
The Respondent did not reveal its identity or reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that, in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(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.
Under paragraph 15(a) of the Rules:
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
A. Identical or Confusingly Similar
The Complainant holds trademark registrations for COUPON CABIN and COUPONCABIN.COM. The Domain Name differs only in omitting the letter “u” from the word “coupon”. The Domain Name is similar in appearance, sound, and sense to the Complainant’s marks.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s registered marks for purposes of the first element of the Complaint, which is essentially a “low-threshold” standing requirement. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.2, and cases cited therein.
B. Rights or Legitimate Interests
Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of the Respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts the burden to the Respondent to come forward with evidence of a right or legitimate interest in the Domain Names, once the Complainant has made a prima facie showing. See WIPO Overview 2.0, paragraph 2.1 (and cases cited therein). The Complainant has done so in this proceeding, by pointing out that the Domain Name appears to be a slight misspelling, nonsensical in itself, of the Complainant’s distinctive marks.
The Policy, paragraph 4(c), includes a non-exhaustive list of circumstances demonstrating rights or legitimate interests in a domain name, including the following:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
It is undisputed that the Complainant has not authorized the Respondent to use a misspelled variation of the Complainant’s marks in a Domain Name. The Respondent has not come forward in this proceeding to explain its selection of the Domain Name, and the Respondent’s PPC website does not identify the Respondent or its business. Hence, the Panel finds that the Complainant’s reasonable presumption has not been rebutted, and that the second element of the Complaint has been established.
C. Registered and Used in Bad Faith
The Policy, paragraph 4(b), offers a non-exclusive list of circumstances that are considered evidence of bad faith in the registration and use of a domain name, including this one:
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
This appears to be precisely the case here. The Domain Name combines the English word “cabin” with letters that do not form an English word but appear to be merely a misspelling of the word “coupon”. The combination of these two words in the Complainant’s marks is distinctive, as “cabin” is not obviously associated with “coupons”. There is no evident reason for the Respondent to have selected the Domain Name other than to emulate the Complainant’s nationally known marks, with a slight misspelling, in order to present PPC advertising to Internet users seeking the Complainant’s website but inadvertently misspelling or mistyping the address for that website. The Respondent has not come forward to present any legitimate, alternative rationale for selecting the Domain Name and using it in this manner.
The Panel concludes on this record that the Respondent more likely than not registered and used the Domain Name 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, <coponcabin.com> be transferred to the Complainant.
W. Scott Blackmer
Date: January 18, 2013