Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Cabela's Incorporated, Sidney, NE, USA ("Complainant"). The Respondent is John Zuccarini, Andalusia, PA, USA ("Respondent").

The domain name at issue is "CABELA.COM", registered with Core Internet Council of Registrars ("Core").

The Panelist certifies that she has acted independently and impartially and to the best of her knowledge, has no known conflict in serving as the panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 07/11/2000; The Forum received a hard copy of the Complaint on 07/13/2000.

On 07/19/2000, Core confirmed by e-mail to The Forum that the domain name "CABELA.COM" is registered with Core and that the Respondent is the current registrant of the name.

On 07/21/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 08/10/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, and to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts by e-mail. It was also e-mailed to postmaster@cablea.com.

On 08/11/2000, having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, The Forum transmitted to the parties a Notification of Respondent Default.

On August 14, 2000, pursuant to Complainantís request to have the dispute decided by a Single Member panel, The Forum appointed Honorable Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, The Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

Complainant requests that the domain name be transferred from Respondent to Complainant.

A. Complainant

Complainant contends that Respondent adopted a name that is nearly identical to Complainantís registered mark. Complainant asserts that Respondent has no legitimate rights in the domain name and has registered and used the domain name in bad faith.

Complainant contends that Respondentís website that corresponds to the domain name in question is offered for no legitimate purpose other than to harass Internet users. Complainant maintains that Respondent has attempted to deceive customers into believing that the said domain name was owned, operated, and maintained by Complainant.

B. Respondent

Respondent did not respond to the Complaint. In the absence of a response, it is appropriate to accept as true all reasonable allegations in the Complaint.

The Complainant is the owner of the trademark "Cabelaís" pursuant to the U.S. Trademark Registration Numbers 1,151981 and 1,224,738. Complainant has been utilizing this mark since at least 1961. Complainant uses this mark in connection with the sale of hunting, fishing, and outdoor clothing and equipment. Complainantís mark is distinctive and famous.

Complainant uses the domain name<cabelas.com> for on-line sales of merchandise and services. Complainant is the owner of the trademark CABELAS.COM pursuant to the U.S. Trademark Registration No. 2,247,977 and Complainant has used this mark since at least 1996.

Respondent registered the domain name <cabela.com>.

Respondent did not accept correspondence from Complainant by certified mail, overnight mail, or facsimile. The only method of communication between the Respondent and Complainant was via e-mail. In correspondence with Complainant, the Respondent indicated that he registered the domain name in reference to the vocal toning and spiritual music website <cabala.com>.

The website that corresponds with the domain name in question contains a series of pop-up windows that systematically appear on the userís screen. These windows provide links to advertising and unsolicited sites. The website continues to send unsolicited screens after the user exits the website. The website also contains personal viewpoints and opinions of Respondent that relate to recent domain name disputes.

Respondent has engaged in a similar pattern of conduct of registering domain names that infringe on other companiesí trademarks.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that a Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

The Complainant has rights in the registered trademark, CABELAS. The Respondentís domain name is nearly identical and confusingly similar to the Complainantís mark. The only difference between the Complainantís trademark and the Respondentís domain name is the deletion of the letter "s" after the word "Cabela". See Reuters Limited v. Global Net 2000, Inc., D2000-441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).

Respondent has no affiliation or relationship with this Complainant and has no legitimate reason or interest for using the Cabelaís trademark as his domain name. See Fanuc Ltd v. Machine Control Services, FA 93667 (Nat. Arb. Forum Mar. 13, 2000) (finding that Respondent had no rights or legitimate interest because Respondent does not own the registered mark, has no permission from the Complainant to use the mark, nor is affiliated with the Fanuc business in any way).

Respondent has not used the domain name in connection with any bona fide offering of goods or services. Policy � 4.c.(i). Rather, Respondent is using the domain name for profit by exposing the user to advertising on a number of "pop-up windows". The only way to discharge these unsolicited advertisements is to close each window as it pops up.

In correspondence with the Complainant, the Respondent indicated that he registered the domain name in connection with the domain name <cabala.com>, a website devoted to vocal toning and spiritual music. Given the Respondentís failure to respond in this ICANN dispute and failure to use the domain name for such purposes, the panel finds this unpersuasive.

Respondent is not commonly known by the domain name in question. Policy � 4.c.(ii). Complainant has been using its mark for almost forty years. The Respondent is not known by the Complainantís mark, but rather is known by the pseudonym, Country Walk.

Respondent is not making a legitimate noncommercial or fair use of the domain name. Policy � 4.c.(iii).

The panel determines that the Respondent has no rights or legitimate interests in the domain name in question.

The Respondent has registered and used the domain name in bad faith.

The Respondent is using the domain name to attract users, for commercial gain, to its website by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, affiliation, or endorsement of the Respondentís website. Policy � 4.b.(iv). The Respondent is profiting from the unsolicited advertisements that users are subjected to upon entering the Respondentís website. See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted users to advertisements).

The Respondent has engaged in a pattern of conduct of registering domain names that infringe upon otherís trademarks. For example, the Respondent has registered <eddiebaur.com>, which is confusingly similar to the trademark EDDIE BAUER. This is only one of many domain names that the Respondent owns that infringe upon otherís famous marks. Respondent has engaged in this conduct repeatedly and for some time. In a Pennsylvania federal court case he was ordered to cease from further conduct similar to his conduct in this case. The Court enjoined Zuccarini from further violation of the Anti-Cybersquatting Consumer Protection Act. Pub. L. No. 106-113, 113 Stat. 1501A-545 (1999). Describing Zuccarini as "a ëwholesalerí of Internet domain names" the District Court Judge found on 03/22/2000 that "Zuccariniís primary existence depended upon the parasitic use of other business names." Shields v. Zuccarini, 89 F. Supp.2d 634, 635, 639 (E. D. Pa. 2000). This is some evidence that Respondent has engaged in a course of conduct like that complained of here.

The panel concludes that Respondent registered the domain name in question in order to prevent the Complainant from reflecting its registered mark in a corresponding domain name. Policy � 4.b.(ii).

Respondent has registered and is using the domain name in question in bad faith.

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "CABELA.COM" be transferred from the Respondent to the Complainant.

Honorable Carolyn Marks Johnson