WIPO Arbitrationand Mediation Center
ADMINISTRATIVEPANEL DECISION
Network Solutions, LLC v. NetworkSolutionz
Case No. D2005-0450
1. The Parties
The Complainant is Network Solutions, LLC, Herndon, Virginia, United States of America, represented by Mintz Levin Cohn Ferris Glovsky and Popeo PC of Washington, DC, United States of America.
The Respondent is NetworkSolutionz, Pickering, Ontario, Canada.
2. The Domain Name and Registrar
The disputed domain name is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) by e-mail on April 27, 2005, and in hardcopy on April 28, 2005. On April 27, 2005, the Center acknowledged receipt of the Complaint and transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On April 27, 2005, Tucows transmitted by email to the Center its verification response, confirming the registrant’s precise name and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 29, 2005. Pursuant to the Rules, paragraph 5(a), the due date for Response was May 19, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 20, 2005.
The Center appointed the undersigned as the sole panelist in this matter on May�24,�2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
There is no controversy that English is the languageof this Administrative Proceeding and the instant Decision for English is thelanguage of the domain name registration agreement.
4. Factual Background
The Complainant, a Delaware limited liability company, provides a broad range of Internet and computer related services, including, domain name registrar services, electronic mail services, web hosting services and web site building services. Complainant is the first and largest registrar of domain names in the world.
Complainant has used since 1979, and most recently for over seven years throughits associated website at , the service mark “NETWORKSOLUTIONS”, for which it owns valid and subsisting US Federal RegistrationsNos. 1,330,193 and 2,468,676 in international classes 35 and 42, covering avariety of computer network services. The “NETWORK SOLUTIONS” markhas also been registered or is being applied for in a number of countries.
Complainant spends millions of dollars per year to advertise and promote globally the “NETWORK SOLUTIONS” mark and the domain name, and, as a result, the mark has widespread recognition in the United States, Canada and worldwide.
For its part, Respondent, -an unspecified entity-, registered the domain name that is the subject of this dispute on January 26, 2000.
Currently, the disputed domain name resolves to a website that displays a listing of poems or songs, which include lewd titles, such as “bored demoshit”.
Having found out about Respondent’s registrationof the domain name at issue and noting the close resemblance between the disputeddomain name and the protected trademark name of NETWORK SOLUTIONS, on February9, 2004, counsel for Complainant wrote Respondent demanding that the lattercease and desist from using the mark in question and ultimately transfer thedomain name that is the subject of this dispute. Following the unsatisfactoryreply on the part of Mr. Michael Pietchsmann, the administrative and technicalcontact person for the domain name in issue, coupled with Mr. Pietchsmann’slack of response to a subsequent letter sent by counsel for Complainant reiteratingits original request, Complainant moved to commence the present proceeding.
5. Parties’ Contentions
A. Complainant
The Complainant’s legal submissions can be summarized as follows:
i. The domain name at issue is confusingly similar to Complainant’s mark and domain name as the only difference between those signs is the replacement of the letter “s” with the letter “z” and such a de minimis divergence is insufficient to overcome a finding of confusing similarity in accordance with prior Policy decisions.
ii. Respondent has no rights or legitimate interests in respect of the disputed domain name for it has never been authorized by Complainant to use the mark “NETWORK SOLUTIONS” in any way, shape or form, much less as part of the disputed domain name
iii. Respondent is engaged in a practice commonly referred to as “typosquatting”, which involves the registration of common misspellings of famous marks and the diversion of Internet users who misspell famous marks for commercial gain. Typosquatting has been recognized by previous Panels as evidence of bad faith with regard to Policy 4(a)(iii).
iv. Respondent’s registration of the disputed domain name establishes that Respondent has intentionally registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant as set forth in section 4(b)(iii) of the Policy.
v. The only conclusion that can be drawn from the evidence is that Respondent has either intentionally registered the disputed domain name mainly for the purpose of disrupting the business of the Complainant or it has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.
B. Respondent
The Respondent did not reply to the Complainant’scontentions.
6. Discussion and Findings
Preliminary
It is worth noting that even though Respondent’s failure to submit aResponse does not automatically result in a decision in favor of the Complainant(as reflected in the recently published WIPOOverview of WIPO Panel Views on Selected UDRP Questions at para. 4.6), itis well established that the Panel may accept all reasonable and supported allegationsand inferences in the Complaint as true. See Charles Jourdan v. Holding AGv. AAIM, WIPO Case No. D2000-0403(finding it appropriate for the Panel to draw adverse inferences from Respondent’sfailure to reply to the Complaint) and also Vertical Solutions Mgmt., Inc.v. webnet-marketing, Inc., NAF Case No.95095 (holding that Respondent’sfailure to respond allows all reasonable inferences of fact in the allegationsof Complainant to be deemed true).
General
According to paragraph 4(a) of the Policy, in order to succeed with its claim, Complainant must prove that each of the three following elements is present:
i. The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
ii. The Respondent has no rights or legitimate interest in respect of the Domain Name; and
iii. The Domain Name has been registered and is being used in bad faith
A. Identical or Confusingly Similar
On its face, it is evident that the domain name at issue is not only confusinglysimilar but virtually identical to Complainant’s mark and domain nameas to sound, connotation, and commercial impression, for a mere replacementof a single letter with another one phonetically equivalent is too tenuous andinsubstantial to detract from this conclusion. See The Stanley Worksand Stanley Logistics, Inc. v. Camp Creek Co., Inc., WIPOCase No. D2000-0113 (holding that “essential” or “virtual”identity constitutes appropriate basis for the purposes of satisfying Policypara. 4 (a)(i)); Stella D’oro Biscuit Co., Inc. v. The Patron GroupInc., WIPO Case No. D2000-0012 (findingidentity between and STELLA D’ORO); AT&TCorp. v. John Zuccarini d/b/a RaveClub Berlin, WIPOCase No. D2001-1503 (finding that the disputed domain name is very similar to the AT&T WIRELESS group of marks in its visual impressionand therefore, an Internet user or consumer viewing the disputed domain nameis likely to confuse it with Complainant’s distinctive and well knownmarks); also Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic,WIPO Case No. D2000-1698, published in“Collection of WIPO Domain Name Panel Decisions”, Eun-Joo Min andMathias Lilleengen, eds., Kluwer Law International, The Netherlands, 2004, atp.140 (finding that in terms of sight and sound, the domain name is virtually identical to the Complainant’s GUINNESS name and mark).
Accordingly, the Panel finds that the Complainant has proven the first threshold of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Complainant denies to have ever authorized Respondent to use the mark “NETWORK SOLUTIONS” in any way, shape or form, much less as part of the disputed domain name.
In view of the foregoing and in concert with prior Policy decisions, the Panelis satisfied that the Complainant has shown prima facie evidence withrespect to this element of the Policy, thus shifting the burden of proof onRespondent. Anti Flirt S.A. and Mr. Jacques Amsellem v. WCVC, WIPOCase No. D2000-1553; and Intocast AG v. Lee Daeyoon, WIPOCase No. D2000-1467.
As a result, the Panel chooses to view Respondent’s failure to submita Response to the Complaint as evidence that it lacks rights or legitimate interestsin the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse AgencyLtd., WIPO Case No. D2000-1221 (findingthat Respondent’s failure to respond can be construed as an admissionthat they have no legitimate interest in the domain names); Canadian ImperialBank of Commerce v. D3M Virtual Reality Inc., eResolution Case No. AF-0336(finding no rights or legitimate interests where no such right or interest wasimmediately apparent to the Panel and Respondent did not come forward to suggestany right or interest it may have possessed).
Furthermore, on the assumed possibility that Respondent’s use of thedomain name in question for the purposes of “storing (joke) music”(as stated in Respondent’s e-mail reply to Complainant’s initialcommunication) might constitute a right or legitimate interest within the meaningof Policy paras. 4(a)(ii) and 4(c), the Panel finds Respondent’s assertionto be disingenuous on this point, for given Complainant’s widespread recognitionover the Internet, it can only be inferred that Respondent intentionally misspelledComplainant’s service mark and domain name by employing the letter “z”in place of the letter “s” contained in Complainant’s registeredsigns, thus incurring in the so-called practice of “typosquatting”,which deceptive behavior under no circumstance could it be regarded as a bonafide offering of goods or services, or a legitimate non-commercial or fair useof a domain name in the sense of paragraphs 4(c)(i) and 4(c)(iii) of the Policy.See Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic,WIPO Case No. D2000-1698 (finding thatgiven the worldwide fame and notoriety of the mark GUINNESS, no trader wouldchoose the domain name unless to create a false impressionof association with the Complainant or its beers; to attract business from theComplainant or misleadingly to divert the public from the Complainant to theRespondent.)
In sum, on the evidence and legal argument submitted, it is not apparent to this Panel that any of the defenses set forth in 4(c) of the Policy is available to Respondent.
As a result, the Complainant has demonstrated the second limb of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
Complainant puts forward that Respondent is engaged in a practice commonly referred to as “typosquatting”, which has been recognized by previous Panels as evidence of bad faith with regard to Policy 4(a)(iii).
In effect, as defined in another case, typosquatting is the intentional misspellingof words with intent to intercept and siphon off traffic from its intended destination,by preying on Internauts who make common typing errors. Thus, in line with Complainant’ssubmission, the Panel notes the authority is legion under the Policy that “typosquattingis inherently parasitic and of itself evidence of bad faith”. See NationalAssociation of Professional Baseball Leagues, Inc., d/b/a Minor League Baseballv. John Zuccarini, WIPO Case No. D2002-1011;Nintendo of America Inc. v. Max Maximus, WIPOCase No.D2000-0588; Bank for International Settlements v. BIS, WIPOCase No.D2003-0986; and also Geocities v. G, WIPOCase No. D2000-0326.
Additionally, for completeness, with regard to Complainant’s contentionthat Respondent has intentionally registered the disputed domain name primarilyfor the purpose of disrupting the former’s business, in acknowledgingthe wide meaning of the term “competitor” under Policy para. 4(b)(iii)as defined in Mission KwaSizabantu v. Benjamin Rost, WIPOCase No. D2000-0279 (a “competitor is one who acts in opposition toanother and the context does not demand any restricted meaning such as commercialor business competitor”), the Panel determines that, in the present case,“the Respondent is ‘competing’ with the Complainant for theattention of internet users which it hopes to attract to its site” (DixonsGroup Plc v. Mr. Abu Abdullaah, WIPO CaseNo. D2000-1406), thus falling under the bad faith scenario laid down byPolicy para. 4(b)(iii).
The finding of bad faith is further reinforced in the instant case since allthe evidence and legal argument tendered, when taken as a whole, leads the Panelto conclude that Respondent registered and has been using the contested domainname “for the (express) purpose of causing confusion with the Complainantand for the purpose of benefiting from that confusion”. Sydney MarketsLimited v. Nick Rakis, trading as Shell Information Systems, WIPOCase No. D2001-0932.
Based on the above, the Panel holds that Policy 4(a)(iii) has been satisfied.
7. Decision
For all the foregoing reasons, in accordance withParagraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that thedomain name be transferred to the Complainant.
Reynaldo Urtiaga Escobar
Sole Panelist
Dated: June 7, 2005
Full & Egal Universal Law Academy