WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ingram Micro, Inc. V. Kalron, Inc.
Case No. D2001-1252
1. The Parties
The Complainant is Ingram Micro, Inc., a Delaware corporation whose principal place of business is at 1600 E. St. Andrew Place, P.O. Box 25125, Santa Ana, California 92799, USA. The Complainant is represented by David A. Segal of Gibson, Dunn & Crutcher LLP of 4 Park Plaza, Suite 1400, Irvine, California 92606, USA.
The Respondent is Kalron, Inc. c/o Frank Wagonner, Post Office Box 16213, Irvine, California 92673, USA.
2. The Domain Name and Registrar
The domain name at issue is . The Registrar of the domain name is DomainDiscover, 9573 Chesapeake Drive, Suite 100, San Diego, California 92123, USA (the "Registrar").
3. Procedural History
The complaint was filed with WIPO Arbitration and Mediation Center on October 16, 2001, and assigned the case number D2001-1252. WIPO verified that the complaint satisfied the formal requirements of the Policy, Rules, and Supplemental Rules, in accordance with paragraph 4(a) of the Rules for Uniform Domain Name Dispute Resolution ("Rules"), and paragraph 5 of the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules"). The Administrative Panelist ("Panel") is satisfied that the complaint satisfied the Rules and Supplemental Rules.
A "Notification of the Complaint and Commencement of the Administrative Proceedings" ("Notification") was given to the Respondent by notice dated October 29, 2001. The Notification was sent by email to the Respondent at the two email addresses noted above. The hard copy of the document was also transmitted by courier and the Panel has seen the courier receipt. The Panel is satisfied that the complaint satisfied the Rules and the Supplemental Rules with regard to the Notification. On November 18, 2001, Respondent filed its response to the complaint. In its response the Respondent did not indicate a panel election. Complainant has therefore elected to designate a single-member Administrative Panel in accordance with paragraph 3(b)(iv) of the Rules.
On December 10, 2001, this case was submitted to the Panel, consisting of a single Panelist, and establishing December 24, 2001, as the deadline for the Panel�s decision. The Panel has requested additional time to review the information and the new decision date is January 4, 2002.
The Panel was properly constituted. The undersigned Panelist submitted a "Statement of Acceptance and Declaration of Impartiality and Independence".
The Panel has not received any requests from Complainant or Respondent regarding further submissions, waivers, or extensions of deadlines. The Panel has not found it necessary to request any further information from the parties.
4. Factual Background
The Complainant is Ingram Micro, Inc., a non-exclusive licensee of the Ingram Industries, Inc., a registered owner of two trademarks, among others, incorporating the "Ingram Micro" name (the "Marks"). The Marks have been in use in commerce since 1991. The Complainant provided evidence of United States trademark registrations incorporating the Marks and Complainant�s right to pursue this action in accordance with its license with the owners of the Marks. Complainant is a large, international, wholesale distributor of information technology products and services. The Complainant delivers information technology products and services to resellers in the United States, Europe, Latin America, and the Asia-Pacific region and has more than 60 distribution centers worldwide. The Complainant is a publicly held company with global net sales of more than $13 billion.
Respondent did not describe its business in its response, but did indicate that the website was owned or controlled by Respondent. The site offers for sale a number of computer local area network-related products, such as cables, as well as print servers and bar code readers. Both parties agree that for a limited period of time, the domain name was routed to the website .
5. Parties� Contentions
The Complainant contends:
(i) The domain name registered by the Respondent is either identical or confusingly similar to the trademarks in which the Complainant has rights.
(ii) There is no evidence that the Respondent has any rights or legitimate interest in the domain name.
(iii) The Respondent has registered and used the domain name in bad faith.
6. Discussion and Findings
(i) The domain name is identical or confusingly similar
The domain name in dispute is . Complainant has been using the Marks and the domain name for many years and has invested a considerable amount of money in each. Respondent�s domain name can be viewed as consisting of the combination of the two words "ingram" and "micro" with an additional "m" in between the words. Although Respondent states that the domain name represents the phrase "Ingredients Among Modern Microwaves," it is not immediately obvious as to why Respondent chose the particular combination of letters in ingrammmicro to represent this phrase. Thus, Respondent�s domain name could be construed as a typographical error or misspelling of the Complainant�s Marks and domain name, and at any rate, completely incorporates Complainant�s Marks. Domain names consisting of typographical errors or misspellings have been found to be confusingly similar to the marks that they imitate. See, e.g. Yahoo!Inc. v. Zviely, WIPO Case No. D2000-0273; America Media Operations, Inc. v. Eric Simmons, NAF Case No. AF-0134.
It is clear to the Panel that the domain name is confusingly similar to the trademarks registered and used by Complainant. The Complainant therefore succeeds in proving the first element.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name.
There is no evidence that Respondent operates a business, has a corporate name, company, product, or services under the "Ingrammmicro" name. As noted above, Respondent states that the domain name is a representation of the phrase "Ingredients Among Modern Microwaves," but there is no other evidence to support this claim. Respondent states that a website "covering the various aspects of microwaves and higher frequency equipment transmitting various wave forms into the environment" in relation to health affects is under development and provided the name of the alleged owner of the domain name, a Celeste Jacobson of Las Vegas, Nevada, to substantiate that claim. The Panel attempted to contact Ms. Jacobson multiple times over the phone, but was unsuccessful. No one answers the phone at the provided number and no answering machine was provided to leave a message. Accordingly, the Panel has no evidence to support Respondent�s claim, especially since the phrase makes no sense and the only thing it shares in common with the alleged purpose for the site is the word "microwave."
Accordingly, there is no evidence that Respondent has any rights or legitimate interest in the domain name or was taking steps in good faith to prepare to use the domain name. Respondent did not present any evidence of Ms. Jacobson�s ownership or interest in the domain name. It is unclear to the Panel as to why the owner of the domain name did not present her interest in the disputed domain name to the Panel. Furthermore, Complainant has not licensed or otherwise permitted Respondent to use any of the Marks or to apply for any domain name incorporating any of those Marks.
The Panel, therefore, concludes that the Respondent has no rights or legitimate interests in the domain name. Mere registration of a domain name cannot constitute such rights. The Complainant therefore succeeds in proving the second element.
(iii) The domain names were registered and are being used in bad faith
The Complainant alleges that the redirection of the domain name to the website was Respondent�s attempt to profit and trade on Complainant�s Marks by attracting users who mistype or misspell the domain name of the Complainant�s website. Respondent, on the other hand, states that the noted redirection occurred by mistake and was corrected shortly after Respondent received certain correspondence from Complainant�s counsel. Both parties agree that the domain name is now listed as under construction and is hosted by the domain registrar BuyD. Complainant alleges that Respondent is attempting to sell the domain name by virtue of the BuyD hosting. Respondent states that this is not true and the name is merely parked there for convenience. The Panel checked the BuyD registry of names for sale and did not find the domain name listed, so the Panel is inclined to believe Respondent�s account.
Nevertheless, the Panel is troubled by the fact that Respondent has not finished construction of the above noted microwave-related website, even in the most basic form, which is not difficult to do, even though Respondent has been on notice of Complainant�s trademark infringement assertions for many months. The Panel is also troubled by the lack of evidence supporting Respondent�s argument that the domain name was intended for a legitimate use, or that it was even registered and is owned by another person. Coupled with the fact that the domain name was used for a short period of time to route users to a website that sells computer-related products, and Complainant is in the information technology business, leads the Panel to question whether the original redirection was in fact a mistake, or was intentional instead, and was simply changed after it was detected.
The Panel does not accept Complainant�s contention that its returned correspondence and undelivered email evidences Respondent�s bad faith. Complainant�s counsel�s email, which primarily consisted of a number of attached files, would have been automatically rejected by many different virus detection programs. Nevertheless, Respondent did acknowledge receiving correspondence from Complainant regarding its allegations of trademark infringement, and did not reply. The only response indicated by Respondent was its response to the Complainant. Previous decisions have determined that a failure to reply to received communications from the other party can be evidence of bad faith intent because if Respondent has a legitimate basis for using the domain name, it could have stated so, rather than waiting to do so in its response herein. Accordingly, together with the other evidence, the Panel finds that the Complainant has succeeded in proving that the domain name has been registered and is being used in bad faith.
It follows that the Complainant has proved its three submissions in accordance with paragraph 4(a) of the Policy, and that accordingly, the Complainant has succeeded in its complaint.
7. Decision
In light of the foregoing, the Panel decides that the domain name registered by Respondent is confusingly similar to the trademarks of Complainant, that the Respondent has no rights or legitimate interests in respect of the domain name, 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 registration of the following domain name be transferred to Complainant.
Timothy D. Casey
Sole Panelist
Dated: January 4, 2002
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