WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
E, Inc. v. Yingkun Guo, dba This domain name is 4 sale
Case No. D2006-0694
1. The Parties
The Complainant is E, Inc., Santa Monica, California, United States of America, represented by Hitchcock Evert LLP, Dallas, Texas, United States of America.
The Respondent is Yingkun Guo, dba This domain name is 4 sale, Yiyang, Hunan, China.
2. The Domain Names and Registrar
The disputed domain names and are registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June�2,�2006. On June�7,�2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain names at issue. On June�7,�2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 June�9,�2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June�29,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June�30,�2006.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on July�10,�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
The Complainant has been publishing Edmunds car buying guides since 1966, and has become a leading service provider in the automotive information industry. It has developed its products and services over the past 40 years, launching its “www.e” website in 1995. Since the website launch, the Complainant has achieved a reputation as a premier on-line resource for automotive information.
The Complainant has been using the mark EDMUND’S since as early as 1966 and owns a United States Trademark Registration (U.S. Registration No. 2,106,713). The Complainant also owns the domain name . The Complainant’s website receives over 12.3 million visits monthly. The Complainant’s website has been recognized by several different entities, including The Wall Street Journal and Keynote Systems, as being famous in the automotive information industry.
The Respondent registered the domain names and on May�3,�2000. At the date of the Complaint, the Respondent was not operating an active website, but rather was identifying its organization name as “This domain is 4 sale”.
The Respondent has failed to file any response in the present proceedings.
5. Parties’ Contentions
A. Complainant
The Complainant’s submissions can be summarized as follows:
(a) Identical or Confusingly Similar – The domain names and are virtually identical to the Complainant’s mark, EDMUND’S, differing only by the deletion of the letter “u” in the domain name and the letter “m” in the domain name. The deleted letters do not significantly affect the appearance or pronunciation of the domain names.
(b) Rights or Legitimate Interests – The Respondent has no rights or legitimate interests in respect of the domain names and . The Complainant’s use of its EDMUND’S trademark predates the Respondent’s registration of both the and domain names by at least 9 years. The Complainant contends that the Respondent does not own any trademark or intellectual property rights in either the words “edmnds” or “edunds”, and that the Respondent does not use either word “edmnds” or “edunds” as a legal or business name. Furthermore, the Complainant contends that the Respondent is a known typosquatter and has a reputation of registering domain names with common typographical errors in order to divert unsuspecting customers for commercial gain.
(c) Registered and Used in Bad Faith – The Respondent’s domain names were registered and are being used in bad faith based on the following factors: (i) diverting traffic through confusion; (ii) typosquatting; and (iii) identifying its organization name as “This domain name is 4 sale”, indicating the sole purpose for registering the domain names was for sale and profit.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Names have been registered and are being used in bad faith.
A. Identical or Confusingly Similar
The first issue in this matter is whether the domain names and are confusingly similar to the Complainant’s mark. There are two elements that must be satisfied to establish this: (a) the Complainant has rights in the particular mark or marks; and (b) the domain name in question is identical or confusingly similar to that mark.
The first element is readily established and independently verified by reference to the applicable Trademarks register. In this case, presentation of a certified copy of U.S. Trademark Registration No. 2,106,713 satisfies the threshold requirement of having rights in the mark EDMUND’S (Imperial College of Science, Technology and Medicine v. Zahid Khan (for Imperial College Management School Alumni Association – ICMSAA), WIPO Case No. D2000-1079).
The domain names and differ from the mark EDMUND’S merely by the deletion of the letter “u” and the apostrophe in and the deletion of the letter “m” and the apostrophe in . These deleted letters and deleted apostrophe do not significantly affect the appearance or pronunciation of the domain name. This conduct is commonly referred to as “typosquatting” and creates virtually identical and/or confusingly similar marks to the Complainant’s trademark (ESPN, Inc. v. XC2, WIPO Case No. D2005-0444; Longs Drug Stores California, Inc. v. Shep Dog, WIPO Case No. D2004-1069). Ample authority exists to support the conclusion that “essential” or “virtual” identity is sufficient for the purposes of satisfying the second element above (See Disney Enterprises, Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol� WIPO Case No. D2001-0489 (disputed domain names include , , ); United Feature Syndicate, Inc. v. Mr. John Zuccarini, WIPO Case No. D2000-1449 (disputed domain name is )).
The Panel also accepts the Complainant’s submission that EDMUND’S has been used since 1966, and is well-known in the automotive information industry, thereby supporting the conclusion that the mark is distinctive of the Complainant’s wares and services. In the Panel’s view, and in light of the Respondent’s failure to produce any evidence to the contrary, the deletion of a single letter and apostrophe from each of the domain names in question does not change the meaning of the word and is therefore not sufficient to obviate or even reduce the likelihood of confusion.
The Panel therefore finds that the Complainant has satisfied the first requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The deletion of a letter in each of the domain names is commonly called “typosquatting” and does not constitute fair use and is the obverse of a legitimate noncommercial or fair use of a domain name (Microsoft Corporation v. Global Net 2000, Inc., WIPO Case No. D2000-0554). Furthermore, the Respondent has a history of registering domain names that contain misspellings of registered trademarks for the purposes of diverting traffic and/or selling for profit (Microsoft Corporation v. Global Net 2000, Inc., supra). In light of the pattern of typosquatting engaged in by this Respondent, and his complete failure to provide any evidence, it is difficult to conceive of a legitimate right or interest on his part in connection with the domain name in question.
There is no evidence that the Respondent is commonly known by this domain name. It also cannot be said that the Respondent is using the domain name in connection with a bona fide offering of goods or services. The Respondent does not operate an active website, but rather offers to sell the domain names. The Panel is not satisfied that this amounts to a bona fide offering of goods or services. (See Cancer Treatment Centers of America, Inc. (CTCA) v. Henry Chan, WIPO Case No. D2003-0611; and Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816). The Complainant has not authorized or licensed the Respondent to use the Complainant’s trademark. The Panel is accordingly satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interest in the disputed domain name. This has not been rebutted by Respondent.
The Panel therefore concludes that the Complainant has satisfied the second requirement under paragraph 4(b) of the Policy.
C. Registered and Used in Bad Faith
In the absence of evidence from the Respondent, the Panel accepts the Complainant’s argument with respect to bad faith based on typosquatting.
The Respondent has registered domain names that are virtually identical to the Complainant’s trademark, except for the deletion of the letter “u” and the apostrophe in and the letter “m” and the apostrophe in . This form of typosquatting is in itself evidence of bad faith (ESPN, Inc. v. XC2, WIPO Case No. D2005-0444). In the ESPN decision, the panel held as follows:
“It is well-settled that the practice of typosquatting, of itself, is evidence of the bad faith registration of a domain name. See Longs Drug Stores Cal., Inc. v. Shep Dog, WIPO Case No. D2004-1069 (February�28,�2005) (Finding typosquatting to be evidence of bad faith domain name registration); Lexar Media, Inc. v. Huang, WIPO Case No. D2004-1039 (January�26,�2005) (‘Typosquatting has been held under the Policy to be evidence of bad faith registration of a domain name’); Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816 (November�29,�2004) (‘[typosquatting] is presumptive of registration in bad faith’). The fact that the Respondent has an extensive history of typosquatting only strengthens the inference of bad faith. MouseSavers, Inc. v. Tsung, WIPO Case No. D2004-1034 (February�1,�2005) (finding bad faith where Respondent was a ‘serial’ typosquatter).
Accordingly, the Panel is prepared to find that the Complainant has satisfied the third element, under paragraph 4(c) of the Policy.
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 names, and be transferred to the Complainant.
Christopher J. Pibus
Sole Panelist
Date: July�24,�2006
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