WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Leaseweb BV Keep v. Case No. D2009-0794 1. The Parties
The Complainant is Leaseweb BV Keep, of Haarlem, Netherlands, represented by Van der Goen advocaten B.V., Netherlands.
The Respondent is , of Arhus, Denmark. 2. The Domain Name and Registrar
The disputed domain name is registered with Ascio Technologies, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2009. On June 18, 2009, the Center transmitted by email to Ascio Technologies a request for registrar verification in connection with the disputed domain name. On June 22, 2009, the Registrar 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” or “UDRP”), 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 22, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 12, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 13, 2009.
The Center appointed Adam Samuel as the sole panelist in this matter on July 14, 2009. 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 is a webhosting provider. It has registered the trademark LEASEWEB in the Benelux no. 0722934 registered on May 1, 2003, and the European Community no. 005304449 registered on November 8, 2007, and no. 006477673 registered on November 21, 2008.
The disputed domain name was registered on August 11, 2004. 5. Parties' Contentions A. Complainant
What follows are the Complainant's contentions with which the Panel may or may not agree.
The Complainant holds Benelux and European Community trademarks for the name LEASEWEB. The disputed domain name sounds the same and looks virtually the same as that mark. The only difference is the omission of the letter ‘e' after the ‘s'. The domain is confusingly similar to the complainant's trademarks.
The Respondent has no rights or legitimate interests in respect of the domain name. It does not use the domain name for any legitimate purpose, does not have the Complainant's permission to use it, is not known as ‘leaseweb' or anything similar. It is holding on to the registration only to profit from selling it to a party that does have a legitimate interest in it
The Respondent offered the dispute domain name for sale to the Complainant while making it clear that it would only sell for a price substantially higher than the Respondent's out-of-pocket expenses constitutes bad faith.
The correct spelling of the first element of the domain name is ‘lease' with an ‘e'. ‘Leas' without the ‘e' has no meaning and does not relate to any legitimate purpose of the Respondent. The Respondent has no other intention than to trade off the Complainant's trademarks in order to force it to buy the domain name in order to prevent further disruption to the Complainant's business. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which it has rights; and
(ii) the 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. A. Identical or Confusingly Similar
The Complainant owns rights in the trademark LEASEWEB. The omission of the letter ‘e' after the ‘s' in the disputed domain name appears to be a classic example of typo-squatting, where a domain name attracts Internet users who make a small typing error. The domain name without the generic top level domain ‘.com' both sounds and looks almost identical to the Complainant's trademark. The word ‘leas' has no independent meaning except as a misspelling of ‘lease'.
In Sierra HealthStyles LLC v. Modern Limited - Cayman Web Development,WIPO Case No. D2006-0020, the panel said on this subject:
“Here, the domain name has two differences from Registration No. 2152729 and the key element of the other two registrations: the addition of the .com suffix and the substitution of ‘i' for the first ‘a' in the trademark.
The substitution of the ‘i' for the first ‘a' is visually apparent on close inspection. The domain name and the trademark, MIRAVAL, however, are phonetically similar. There are various ways that both versions of the word may be pronounced and some of these will or may sound the same or similar. The word element of the domain name created by the substitution of the ‘i' for the ‘a' is not a plain English word or otherwise generic. There are likely to be circumstances where a person might unintentionally type in the domain name instead of the trademark term, particularly having regard to imperfect recollection and the potential for persons using the Internet to ‘guess' at domain names. In these circumstances a finding of confusing similarity in line with the ‘typosquatting' cases is appropriate. See e.g. AltaVista Company v. Saeid Yomtobian,WIPO Case No. D2000-0937; America Online, Inc. v. Johuathan Investments, Inc. and AOLLNEWS.COM,WIPO Case No. D2001-0918; and Wachovia Corporation v. Peter Carrington,WIPO Case No. D2002-0775.
Consequently, the Panel finds that the disputed domain name is at least confusingly similar to the Complainant's registered trademark rights.”
For the same reasons, the Panel concludes here that the domain name is confusingly similar to the Complainant's registered trademark. B. Rights or Legitimate Interests
The Respondent is not called “Leasweb” or anything similar and does not appear to trade under that or any related name. The website with the disputed domain name appears never to have been active. There is no evidence that the Complainant has authorized the Respondent to use its trademark. The Respondent has never asserted any rights or legitimate interests in that name or replied to the Complainant's correspondence on the subject. For these reasons, on the basis of the available record, notably the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The name, “Leasweb”, has no independent significance or meaning except as a misspelling of the Complainant's trademark. This was registered before the domain name was registered. In this Panel's view, it is impossible, at least without a Response to the Complaint, to identify a reason why the Respondent registered the disputed domain name other than to attract business or Internet users to its site who were looking for a site connected to the Complainant's trademark or business. Currently, the domain name is not being actively used.
The only explanation of what has happened is that the Respondent's motive in registering and using the sites seems to be, as the Complainant says, simply to disrupt the Complainant's relationship with its customers or potential customers, attempt to attract Internet users for potential gain or persuade the Complainant to buy the domain name from it for an amount in excess of the Respondent's out-of-pocket expenses. These all constitute evidence of registration and use in bad faith: paragraph 4(b)(i), (ii) and (iii) of the Policy.
This conclusion is supported by the view expressed in Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568:
“Typosquatting is virtually per se registration and use in bad faith. It is difficult to conceive of circumstances that would overcome the inference that the typosquatter “intentionally attempted to attract, for commercial gain, Internet users to [Respondent's website by creating a likelihood of confusion with the complainant's mark as to the source” of the website. Here such conduct was undertaken to send Complainant's customers to a site that promoted directly competing services.”
For all these reasons, the Panel concludes that the domain name was registered and is being used in bad faith.
The Complainant also argued that the offer to sell the domain name in excess of the Respondent's out-of-pocket expenses in response to the cease and desist constituted evidence of bad faith. Other panels have reached the same conclusion on similar facts: McMullan Bros., Limited, Maxol Limited, Maxol Direct Limited Maxol Lubricants Limited, Maxol Oil Limited Maxol Direct (NI) Limited v. Web Names Ltd,WIPO Case No. D2004-0078. In this case, a Mr. Modler did reply to the cease and desist letter stating “It will facilitate the transfer, if an offer was made”. However, since the Panel has concluded that there is sufficient evidence of bad faith registration and use through the registration and continuous holding of a domain name that involves typo-squatting, there is no need to decide whether this e-mail constitutes further evidence of bad faith in both use and registration. 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 the Complainant.
Adam Samuel
Sole Panelist
Dated: July 17, 2009
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