Posts Tagged ‘Pattern of Bad Faith’

ABC Liquors Also Wins Against Texas International Property Associates

Friday, July 31st, 2009

In the recent domain name dispute decision of ABC Liquors, Inc. v. Texas International Property Associates – NA NA FA1266499 (Nat. Arb. Forum, July 28, 2009) a single member Panel was faced with a dispute over the domain www.abcfinewinesandspirits.com. Complainant is the well known retail store for all things alcohol, including beer, wine and liquor. ABC Liquors maintains a web site at www.abcfws.com. Respondent is the infamous domainer who has over 100 adverse decisions through the UDRP process. Anyone who has tried to find the Whois information using simple Whois search tools for domains owned by Respondent has likely hit the dead end known as Compana LLC. We have previously blogged about this Respondent, but it has been a while, so we figured this would be a good time to revisit a case with this Respondent.

On a procedural level, Respondent argued that it agreed to the transfer of the domain and provided three possible ways which a Panel could proceed which include:

(i) to grant the relief requested by the Complainant on the basis of the Respondent’s consent without reviewing the facts supporting the claims (ii) to find that consent to transfer means that the three elements of paragraph 4(a) are deemed to be satisfied, and so transfer should be ordered on this basis or (iii)  to proceed to consider whether on the evidence the three elements of paragraph 4(a) are satisfied because the Respondent’s offer to transfer is not an admission of the Complainant’s right, or because there is some reason to doubt the genuineness of the Respondent’s consent.

The Panel pointed out that Respondent requested the Panel should follow choice number (1) for the following reasons:

The Respondent further states that the Panel should opt for the first alternative and grant the Complainant an immediate transfer without discussing the merits. The Respondent finds an expeditious decision to be more suited to the facts of the case, as both parties agree upon a transfer. Furthermore, the Respondent evokes arguments of judicial economy as well as Section 10(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), both of which, according to the Respondent, support an immediate transfer.

Interestingly Respondent requested that “it should be given the opportunity to prepare a more formal response if the Panel decides that further analysis is required.” The Panel rejected this request noting “the Respondent was already given twenty (20) days from the date of the commencement of the proceedings to submit such a response.  Had the Respondent wanted to appropriately and fully reply to the Complaint, it would have had more than enough time to do so.”

So the Panel reviewed the arguments presented and decided that it would go through the full analysis of the three elements.

However, alternatively, it may be decided that this expeditious approach would be a way for cybersquatters to avoid adverse findings against them. This is the reason why the Panel, in Graebel Van Lines, Inc. v. Texas International Property Associates, FA 1195954 (Nat. Arb. Forum July 17, 2008), stated that “the transfer of the disputed domain name deserves to be along with the findings in accordance with the Policy.”

The decision by the Panel was fairly consistent with other Panels. The Panel found that the domain was confusingly similar and nearly identical to Complainant’s mark ABC FINE WINE & SPIRITS with the exception of the additional “s” on the end of the word wine. The Panel found that Respondent was not commonly known by the domain name and based on the typosquatting it inferred no rights or legitimate interests. Lastly, the Panel found that Respondent engaged in a pattern of bad faith registration and attempted to create a likelihood of confusion for commercial gain by using the domain.

Ultimately, the Panel ordered the domain be TRANSFERRED.

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