ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
See caption above.
2. Procedural History
Eddie Bauer, Inc. (hereinafter "Complainant") filed a complaint on-line through eResolution's website on June 5, 2000. A signed print copy of the complaint was filed on June 7, 2000. The eResolution Clerk attempted to forward the complaint by facsimile and electronically to Paul White, listed as the administrative and technical contact for Spider Inc. (hereinafter "Respondent") on June 9, 2000. Both facsimile and e-mail attempts to contact Respondent were unsuccessful. On June 21, the eResolution Clerk received acknowledgement of receipt of the e-mail message by email@example.com. The UPS tracking information confirmed delivery on June 12, 2000 of the hard copy of the complaint, annexes and official notification of commencement of administrative proceedings.
The record does not reflect any response filed by the Respondent. On July 6, 2000, the undersigned panel member agreed to act as a panelist, and on July 7, 2000, the parties were notified of the appointment of the panel.
On July 19, 2000, the panel requested additional information from the parties regarding evidence of bad faith. The eResolution forwarded this request to the parties, and received a supplemental letter on July 27, 2000 from Daniel R. Harper, attorney for the Complainant.
3. Factual Background
Complainant is the owner of a federally registered trademark "EDDIE BAUER" for hunting and camping gear and clothing. This federal registration issued on November 11, 1969; it indicates a date of first use in commerce of January 0, 1922. Complainant is also the owner of a federally registered service mark "EDDIE BAUER" for computerized on-line retail services in the field of general merchandise. This registration issued on June 8, 1999; it indicates a date of first use in commerce of April 24, 1996.
Respondent is the owner of a domain name "eddiebower.com," registered through Network Solutions, Inc. (hereinafter NSI) on May 19, 1998. The domain name "eddiebower.com" resolves to a website that is also found under a different domain name: "bigfoot.com." Bigfoot.com appears to be an Internet e-mail management business; however, the front page of bigfoot.com invites viewers to visit the bigfoot.com store, in which various items of clothing are offered for sale. Respondent is also the owner of other domain names registered through NSI, including several that appear to be misspellings of relatively well-known marks, for example, "blomingdales.com" and "jcpeney.com."
There is no record evidence of any offer of transfer or sale of the contested domain name.
4. Parties' Contentions
Complainant alleges in Count 4© of its complaint that
(a) "eddiebower.com" is confusingly similar to Complainant's federally registered marks, as well as to the domain name "eddiebauer.com" that is owned by Complainant;
(b) Complainant's rights in many of its marks have become incontestable, and therefore Respondent has no legitimate rights in the contested domain name; and
(c) Respondent has registered and used the domain name in bad faith, i.e., "that Respondent intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on-line locations by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Complainant's] website or of a product or service on their website." In support of this third contention, Complainant points to the multiple registrations of marks by the Respondent of apparently deliberately misspelled company names. Complainant also claims that the apparel that is sold on the bigfoot.com site is "similar to that sold in the Complainant's ("Eddie Bauer") stores."
As stated above, Respondent has filed no papers, and thus has not controverted any of the Complainant's alleged facts
5. Discussion and Findings
The procedural posture of this case is complicated by the fact that the Respondent has not filed a response to the complaint. Because there is no response, I will accept as true all factual allegations in this unopposed complaint. I thus proceed to the determination whether Complainant has met its burden of proof of meeting each of the three required elements of Paragraph 4a of the ICANN Policy.
Identity or Confusing Similarity of Respondent's Domain Name to Complainant's Registered Mark: The contested domain name is not identical to Complainant's registered marks, nor is there is no actual evidence of consumer confusion. Nonetheless, several facts support the inference of confusing similarity. First, the contested domain name is a homonym of the mark "EDDIE BAUER." It is possible, indeed likely, that some potential Eddie Bauer customers may misspell the name as "eddiebower." Moreover, the mark "EDDIE BAUER" and its homonym "eddiebower" are not generic terms for which confusing similarity might be tolerated for the sake of free expression. Finally, Complainant has demonstrated that it has incontestable rights in the mark "EDDIE BAUER" in certain classes of goods and services. Thus, I find that while the contested domain name is not identical to the Complainant's registered marks, there is confusing similarity between it and the Complainant's marks.
No Rights or Legitimate Interests of the Respondent in Respect of the Domain Name: Here, I must rely on circumstantial evidence, and here again are three relevant facts: First, when the user types in "eddiebower.com," s/he is taken to the "bigfoot.com" website. Second, Respondent's primary website of "bigfoot.com" can be reached through a more intuitive domain name for that site, i.e., "bigfoot.com." Finally, although the "bigfoot.com" business appears to be a legitimate business of e-mail management, there is no obvious business connection between the terms "bigfoot.com" and "eddiebower.com." Taken together, these three facts lead to the inference that Respondent's right or interest in "eddiebower.com" is minimal to non-existent. Respondent has not filed any papers or otherwise pointed to any evidence to rebut these inferences, pursuant to ICANN Policy Paragraph 4c. For example, it has not shown that it has been commonly known by the domain name, even though it may have not acquired trademark or service mark rights. Thus, I find that Respondent has no right or legitimate interest in the domain name "eddiebower.com."
Respondent's Bad Faith Registration and Use: This third element is the most difficult for Complainant to prove, as it requires a finding of "intentionally attempting to attract for commercial gain, Internet users to [Respondent's] website or other on-line locations by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Complainant's] website or of a product or service [on its] website." ICANN Policy Paragraph 4(b)(iv) (emphasis added). Again, I rely here on circumstantial evidence. This evidence includes the following facts taken from the Complainant's supplemental letter, which are now incorporated here as findings:
a) Respondent has registered several domain names that are misspellings of other famous company names;
b) Users who type in "eddiebower.com" are routed to the website "bigfoot.com," which features apparel that is similar to that soled in the Complainant's stores; and
c) User may thus believe that "eddiebower.com" is sponsored or affiliated with the Complainant's Eddie Bauer stores.
In a similar case, a panel found that the respondent's registration of a domain name confusingly similar to the complainant's registered marks was intended to reroute traffic from complainant's website to respondent's website. Big Dog Holdings, Inc. v. Red River Farms, Inc., ICANN Case No. NAF FA 0093554 (Feb. 3, 2000). In that case, as in the instant proceeding, the respondent had filed multiple registrations for domain names that resolved to a website with no obvious relationship to those domain names. And as in this case, the respondent had failed to file a response. The Big Dog Holdings panel found bad faith on those facts.
These facts as a whole show that Respondent's registration and use of the domain name "eddiebower.com" are in bad faith, although Respondent's intent must be inferred from circumstantial evidence.
For the above reasons, I find that Complainant has met its burden of proof regarding each of the three elements necessary to result in a transfer of the domain name. I thus conclude that the domain name should be transferred to the Complainant.
Seattle, WA, USA August 1, 2000
(s) Margaret Chon