WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
General Electric Company v. Fisher Zvieli, a/k/a Zvieli Fisher
Case No. D2000-0377
1. The Parties
The Complainant is General Electric Company, a corporation organized under the laws of the State of New York, United States of America, having its principal place of business in Fairfield, Connecticut, United States of America.
The Respondent is Fisher Zvieli, an individual having an address at 18034 Ventura
Blvd., No. 225, Encino, California, United States of America.
2. The Domain Name(s) and Registrar(s)
The domain name at issue is , which domain name is registered with Network Solutions, Inc., based in Herndon, Virginia, United States of America.
3. Procedural History
A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on May 3, 2000, and the signed original together with four copies was received on May 8, 2000. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant, dated May 5, 2000.
On May 5, 2000, a Request for Registrar Verification was transmitted to the registrar, Network Solutions, Inc. ("NSI") requesting it to: (1) confirm that the domain name at in issue is registered with NSI; (2) confirm that the person identified as the Respondent is the current registrant of the domain name; (3) provide the full contact details (i.e., postal address(es), telephone number(s), facsimile number(s), email address(es)) available in the registrar�s Whois database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact; (4) confirm that the Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5) indicate the current status of the domain name.
On May 11, 2000, NSI confirmed by reply e-mail that the domain name is registered with NSI, is currently on hold status, and that the Respondent is the current registrant of the name. The registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect. 1
The WIPO Center determined that the Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a sole Panelist were paid on time and in the required amount by the Complainant.
No formal deficiencies having been recorded, on May 12, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of June 1, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI�s confirmation. In addition, the complaint was sent by express courier to the postal address given. Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent."
On June 7, 2000, not having received any response, the WIPO Center sent the parties a formal Notification of Respondent Default.On June 30, 2000, in view of the Complainant's designation of a three-person Panel, the WIPO Center appointed M. Scott Donahey to serve as Chair, and Clark Lackert and Richard Page to serve as co-panelists.
4. Factual Background
Complainant first registered the "GE" with the United States Patent Office ("USPTO") in 1900. Complainant has since registered the mark in conjunction with numerous goods and services, including machinery and plants for the generation of electricity, electric lamps, refrigerators, freezers, air conditioners, varnishes, paints, silicone sealants, insurance brokerage services, telecommunications equipment leasing, computer services, plastics, phonographs, tape recorders, electric guitars and computer programs. Complainant has used the GE mark in conjunction with its worldwide operations, and it is one of the most recognizable marks in the world.
Complainant has, over a period of more than one hundred twenty years, expended billions of dollars on advertising and marketing its goods and services around the globe in connection with its GE mark. On March 17, 1998, Respondent registered the domain name . To date, Respondent has not used the domain name to develop a web site. Respondent has registered at least 100 other domain names including , , , , , , , , , , and .
5. Parties� Contentions
Complainant contends that Respondent has registered as a domain name a mark which is identical or confusingly similar to the service mark registered and used by Complainant, that Respondent has no rights or legitimate interests in respect to the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.
Respondent has not contested the allegations of the Complaint.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable." Since both the Complainant and Respondent are domiciled in the United States, and since United States� courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,
2) that the Respondent has no legitimate interests in respect of the domain name; and,
3) the domain name has been registered and is being used in bad faith.
Prior Panel decisions that have examined domain names that consist of the prefix "www" affixed to a mark have determined that the domain name so constructed is substantially similar or identical to the mark. America Media Operations, Inc. v. Erik Simons, ICANN Case No. AF-0134 (); World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, ICANN Case No. D2000-0256 ( and ); InfoS, Inc. v. Registrar Administrator Lew Blanck, ICANN Case No. D2000-0069 (); ABC Distributing, Inc. v. Alex Fedorov, ICANN Case No. FA 94787 (). Moreover, as the Panel in America Media Operations, supra, correctly points out, a domain name registrant may establish a web site to which a user will be taken should the user inadvertently omit the "." after the "www" when trying to reach the web site of the mark holder. The Panel adopts the rationale of the prior decisions and finds that the domain name at issue is identical or confusingly similar to the mark, "GE."
Complainant has alleged and Respondent has failed to deny that Respondent has no legitimate interests in respect of the domain name at issue. Alcoholics Anonymous World Services, Inc. v. Raymond, WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayai ve Tic. A.S., WIPO Case No. D2000-0011.
Complainant's allegations fail to come within any of the four examples of bad faith registration and use set out in Paragraph 4(b) of the Policy. It does not meet the requirement of Paragraph 4(b)(i), since there are no allegations that there was any offer by Respondent to sell the domain name at issue. Paragraph 4(b)(ii) is not applicable, since Complainant has already reflected its mark in the domain name .
Paragraph 4(b)(iii) does not appear to be applicable, since there is no evidence that Respondent is a competitor of Complainant. Finally, Paragraph 4(b)(iv) requires an attempt to attract users to a web site hosted by Respondent, and there is no allegation that respondent is using the domain name at issue to resolve to a web site.
However, the Examples in Paragraph 4(b) are intended to be illustrative, rather than exclusive. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.In Telstra it was established that "inaction" can constitute bad faith use, and the Telstra decision has since been cited for that proposition and followed by subsequent Panels. Ingersoll-Rand v. Frank Gully, d/b/a Advcomren, WIPO Case No. D2000-0021; Guerlain, S.A. v. Peikang, WIPO Case No. D2000-0055; Compaq Computer Corp. v. Boris Beric, WIPO Case No. D2000-0042; Association of British Travel Agents Ltd. v. Sterling Hotel Group Ltd., WIPO Case No. D2000-0086; Sanrio Co. Ltd. and Sanrio, Inc. v. Lau, WIPO Case No. D2000-0172; 3636275 Canada, dba eResolution v. eR, WIPO Case No. D2000-0110; Marconi Data Systems, Inc. v. IRG Coins and Ink Source, Inc., WIPO Case No. D2000-0090; Stralfors AB v. P D S AB, WIPO Case No. D2000-0112; InfoS, Inc. v. Ofer, WIPO Case No. D2000-0075. Telstra established that whether "inaction" could constitute bad faith registration and use could only be determined by analyzing the facts in a given case.
However, in this case, the Panel finds that there exists more than mere inaction. In this case, Complainant has produced abundant evidence that Respondent is engaged in a pattern of conduct in which he makes slight changes to, adds to, or subtracts from, the trademarks and service marks of others, in the apparent hope that those who seek to visit the web site of the mark holders might inadvertently make a typographical error and potentially could be taken to a web site constructed by Respondent to profit from this confusion. Indeed, this was precisely the situation in the cases of America Media Operations, InfoS, and ABC Distributing, all supra. This type of conduct has been dubbed "typosquatting."
The fact that in the case at hand, Respondent has yet to establish such a web site makes no difference. There is no conceivable good faith use to which Respondent, who has no right or legitimate interest in the domain name at issue, could put the domain name at issue, which is identical or confusingly similar to the famous "GE" mark. To quote a prior Panel decision, "[B]ecause Respondent is contributing no value-added to the Internet -- it is merely attempting to exploit a general rule of registration -- the broad community of Internet users will be better served by transferring the domain name to a party with a legitimate use for it." Educational Testing Service v. TOEFL, ICANN Case No. D2000-0044. Accordingly, the Panel finds that the practice of "typosquatting" constitutes registration and use in bad faith.
7. Decision
For all of the foregoing reasons, the Panel decides that the domain name registered by Respondent is identical or confusingly similar to the mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domain name at issue, and that the Respondent's domain name has been registered and is being used in bad faith. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name be transferred to the Complainant.
M. Scott Donahey
Chair
Clark Lackert Richard Page
Panelists
Dated: July 15, 2000
Footnotes:
1. By email of May 3, 2000, Respondent claims that the domain name has expired and is available to be registered by the public. The Whois details show a Record expiration date of March 17, 2000. However the Whois details also show the name at issue to be registered by Respondent, as does the May 11, 2000, email from the Registrar. Accordingly, the panel treats the domain name as under the current registration of Respondent.
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