WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
E, Inc. v. Bestinfo
Case No. D2006-0573
1. The Parties
The Complainant is E, Inc., United States of America, represented by Hitchcock Evert LLP, United States of America.
The Respondent is Bestinfo, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with DSTR Acquisition. I, LLC d/b/a 000D.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 5, 2006. On May 8, 2006, the Center transmitted by email to DSTR Acquisition. I, LLC d/b/a 000D a request for registrar verification in connection with the domain name at issue. On May 11, DSTR Acquisition. I, LLC d/b/a 000D transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant 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 May 12, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 1, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 4, 2006.
The Center appointed Lawrence K. Nodine as the sole panelist in this matter on June�13, 2006. 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.
4. Factual Background
Complainant is a leader in the automotive information industry and has been since it first published its Edmunds car buying guides in 1966. Since 1995, “www.e” has been the premier online resource for automotive information.
Complainant owns the and the domain names. The “www.e” web site is the central focus of Complainant’s business today, currently serving over 127,000,000 pages per month to over 12.3 million monthly visitors (9.3 million unique monthly visitors), with each visit lasting an average of 16 minutes.
Complainant owns United States federal trademark registration No. 2, 106, 713 dated October 21, 1997 for the mark EDMUND’S for “magazine and series of non-fiction books featuring vehicle pricing information” and “information services, namely, providing vehicle pricing information by telephone and by means of an online communications network.”
Complainant registered its domain name on January 4, 1996.
Respondent registered the Domain Name at issue, namely, on April�12, 2003.
5. Parties’ Contentions
A. Complainant
With respect to paragraph 4(a)(i) of the Policy, Complainant contends that:
Respondent registered the Domain Name which is confusingly similar to Complainant’s domain name, as well as its business name and famous mark EDMUNDS.
The only difference between the Domain Name at issue and Complainant’s mark and domain name is Respondent’s replacement of the letter “n” with the letter “m”.
With respect to paragraph 4(a)(ii) of the Policy, Complainant contends that:
Respondent does not have any trademark or intellectual property rights or any other legitimate interest in the Domain Name.
There is no indication that Respondent uses the Domain Name as its legal or business name.
There is no evidence to suggest that Respondent ever used the Domain Name and/or a name closely corresponding to Complainant’s mark EDMUNDS prior to Complainant’s launch of “www.e” in 1995.
The sole purpose of Respondent’s selection of the disputed Domain Name is to improperly capitalize on the reputation and goodwill established by Complainant over its long history.
Respondent’s registration and use of the disputed Domain Name cannot constitute a “fair use” due to Respondent’s intentional misspelling of Complainant’s mark.
Respondent’s registration of the Domain Name which is one letter removed from Complainant’s famous mark constitutes obvious intent to register the name with intent for commercial gain and to misleadingly divert consumers.
Respondent has made every effort to divert consumers from Complainant’s web site by offering a confusingly similar web site. Such actions are strong evidence that the Respondent has no rights or legitimate interest in the Domain Name at issue.
With respect to paragraph 4(a)(iii) of the Policy, Complainant contends that:
Respondent has registered and used the contested Domain Name in bad faith.
Respondent’s selection of the Domain Name, which is virtually identical (except for the replacement of an “n” with an “m”) to the heavily promoted and well-recognized trademark of Complainant, clearly indicates a bad faith intent. Respondent’s decision was part of a scheme to attract, for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s domain name and mark EDMUNDS.
Also, Respondent has a history of repeatedly violating the Policy, as further evidence of Respondent’s bad-faith intent in registering the disputed Domain Name. Respondent has been found to be in violation of the Policy in at least four cases.
Respondent’s actions show its bad-faith intent in registering the disputed Domain Name.
Respondent should not be allowed to benefit from its bad faith, and should be forced to transfer the disputed Domain Name to Complainant.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith.
Respondent did not timely respond to Complainant’s contentions.
Even though the Center gave Respondent sufficient notice under paragraph 2(a) of the Rules, Respondent has not responded to the Complaint. Where Respondent does not respond to the Complaint, in the absence of exceptional circumstances the Panel shall decide the dispute based upon the Complaint. Policy paragraph 4(a); Rules, paragraph 5(e), paragraph 14(a). No such exceptional circumstances exist in the present case. The Complaint is to be decided on the basis of the statements and documents submitted. Rules paragraph 15(a). Under Rule 14(b), Respondent’s failure to answer entitles the Panel to “draw such inferences therefrom as it considers appropriate.” See Brown Thomas & Company Limited v. Domain Reservations, WIPO Case No. D2001-0592 (Lack of response could be enough to find for Complainant).
A. Identical or Confusingly Similar
The Panel finds that the Domain Name at issue is confusingly similar to a trademark or service mark in which Complainant has rights.
The Panel finds that Complainant has trademark rights in the mark EDMUND’S due to its United States service mark registration No. 2, 106, 713 and its long established use of the mark for automotive information services since 1966.
The Panel also finds that the Domain Name is likely to be confused with Complainant’s EDMUND’S service mark because it incorporates Complainant’s entire trademark, the only exception being the substitution of the letter “m” for the letter “n” and the generic top-level domain “.com”. The addition of the generic top-level domain “.com” is without legal significance when comparing the domain name at issue to Complainant’s registered trademark. The Forward Association, Inc., v. Enterprises Unlimited, NAF Claim No. FA0008000095491 (“[N]either the beginning of the URL (http://www.), nor the TLD (.com) have any source indicating significance). Further, the substitution of the letter “m” in the disputed Domain Name represents typosquatting. This close misspelling renders the Domain Name confusingly similar to Complainant’s trademark. Alta Vista Co. v. Yomtobian, WIPO Case No. D2000-0937 (domain names and are confusingly similar to trademark ALTA VISTA).
B. Rights or Legitimate Interests
The Respondent did not respond to the Complaint. The Panel finds that the Complaint has made a prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed Domain Name, nor is there any evidence to the contrary in the record. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed Domain Name.
C. Registered and Used in Bad Faith
The Panel finds that Respondent registered and used the disputed Domain Name in bad faith.
Complainant’s allegations of bad faith are not contested. Respondent was on notice of Complainant’s trademark rights when it registered the Domain Name that is the subject of this Complaint. The Panel accepts as probable in the circumstances Complainant’s uncontradicted contention that Respondent intentionally selected and registered the Domain Name at issue “to attract, for commercial gain, Internet users to the Respondent’s web site, by creating a likelihood of confusion with the Complainant’s domain name and mark EDMUNDS.” The Respondent has in all probability engaged in an act of typosquatting in relation to the disputed Domain Name. Typosquatting is sufficient to support an inference of bad faith shifting the burden to Respondent to offer contrary evidence. “The act of ‘typosquatting’ or registering a domain name that is a common misspelling of a mark in which the party has rights has often been recognized as evidence of bad faith registration and use.” RX America, L.L.C. v. Tony Rodolakis, WIPO Case No. D2005-1190; Paragon Gifts, Inc. v. Domain.Contact, WIPO Case No. D2004-0107 (citing National Association of Professional Baseball Leagues, d/b/a Minor League Baseball v. Zuccarini, WIPO Case No. D2002-1011).
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to Complainant.
Lawrence K. Nodine
Sole Panelist
Dated: June 27, 2006
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