WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Wikimedia Foundation Inc. v. Kevo Ouz a/k/a Online Marketing Realty Case No. D2009-0798 1. The Parties
The Complainant is Wikimedia Foundation Inc., of California, United States of America, represented by The Gigalaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States.
The Respondent is Kevo Ouz a/k/a Online Marketing Realty, of Los Angeles, United States. 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 17, 2009. On June 17, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain names. On June 17, 2009, 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” 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 24, 2009. In accordance with the Rules, paragraph 5(a), the due date for response was July 14, 2009. Respondent did not submit any response. Accordingly the Center notified Respondent's default on July 15, 2009.
The Center appointed Lynda M. Braun as the sole panelist in this matter on July 24, 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
Complainant is a 501(c)(3) nonprofit charitable organization, established in 2003, dedicated to encouraging the growth, development and distribution of free, multilingual content. Complainant operates one of the largest collaboratively edited reference projects in the world, including the Wikipedia website (at “”). More than 11.5 million articles have been published on the site.
Complainant is the registrant of the domain names and , which were registered in January 2001. Complainant uses these domain names in connection with the Wikipedia website described above.
The Complainant has established rights in the mark WIKIPEDIA through its use of the mark and through the registration of the mark in various classes with the United States Patent & Trademark Office. The Complainant also has numerous international registrations of the WIKIPEDIA mark.
Complainant's registrations include those in international classes 9, 14, 16, 18, 21, 25, 35, 38, 41, and 42. The registration dates of these marks extend from 2001 through 2008. 5. Parties' Contentions A. Complainant
Complainant contends that the domain names and are confusingly similar to the trademark WIKIPEDIA in which the Complainant has rights. Complainant believes this is a classic case of typosquatting.
Complainant contends that Respondent has no rights or legitimate interest in respect of the domain names. Complainant claims that Respondent's name bears no connection to the domain names at issue in this case that would suggest that the domain names are related to a mark or trade name in which Respondent has rights. The Complainant further contends that the registration of and was not authorized by Complainant.
Complainant also claims that the domain names were registered and used in bad faith. Complainant points to a pattern of conduct by Respondent wherein Respondent registered at least two other domain names that previous panels found were identical or confusingly similar to another entity's trademark. Complainant further claims that Respondent is using the domain names in connection with websites that offer services competitive with those offered by Complainant, and, in fact, uses Complainant's own logo without Complainant's permission, all for commercial gain. Furthermore, Complainant states that Respondent never used or made preparations to use the domain names in connection with any bona fide offerings of goods or services, nor does Respondent have any basis to make a fair use claim in connection with the domain names.
In sum, Complainant states that “Complainant's established rights in the WIKIPEDIA [t]rademark and the fact that the Disputed Domain Names are ‘so obviously connected with' Complainant, Respondent's actions suggest ‘opportunistic bad faith' in violation of the Policy”.
Finally, Complainant's trademark registrations of the WIKIPEDIA mark predate Respondent's registration of the and domain names. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has valid and well-established, exclusive rights in its WIKIPEDIA trademark.
Neither of the domain names registered by Respondent is identical to the WIKIPEDIA trademarks, but both are confusingly similar. The domain name contains the WIKIPEDIA trademark in its entirety with the addition of one single letter, “i.” The repeated letter does not significantly affect the appearance or pronunciation of the domain name, and when compared to the WIKIPEDIA trademark, it is a classic example of typosquatting. See E, Inc v. Triple E Holdings Limited,WIPO Case No. D2006-1095 (transfer of ). See also, e.g., Harrods Limited v. Harrods; Transure Enterprise Ltd,WIPO Case No. D2008-1687 (transfer of ); and Florida Department of Management Service v. Forsyte Corporation,WIPO Case No. D2008-1658 (transfer of ). The domain name likewise contains the WIKIPEDIA trademark in its entirety, with the sole difference being the addition of a single letter “a”. The addition of this letter does not avoid confusing similarity. See Nutri/System IPHC Inc. v. Ms. Lacy Ana De Oliveira,WIPO Case No. D2008-0204 (transfer of ). See also ACCOR v. Vista Holdings, Inc.,WIPO Case No. D2008-0291 (transfer of ).
Additionally, the “the overall impression of the designation” of each of Respondent's registered domain names is one of “being connected to the trademark of Complainant”, despite the additional letters. See L'OREAL v. Lewis Cheng,WIPO Case No. D2008-0437. See also SANOFI-AVENTIS v. Health Care Marketing Company,WIPO Case No. D2007-0475.
Thus, the Panel concludes that Complainant has established the first element of the Policy. B. Rights or Legitimate Interests
Respondent has no rights or legitimate interest in respect of the domain names. Complainant has not authorized, licensed or otherwise permitted Respondent to use its trademarks. The name of Respondent has no connection to the domain names that would suggest that it is related to a mark or trade name in which Respondent has rights. Respondent is not making a legitimate non commercial or fair use of the domain names. Instead, Respondent is using the domain names for commercial gain.
Thus, the Panel concludes that Complainant has established the second element of the Policy. C. Registered and Used in Bad Faith
The Panel finds that based on the record, Complainant has demonstrated the existence of Respondent's overwhelming bad faith pursuant to paragraph 4(b)(iv) of the Policy.
First, Respondent's use of Complainant's mark for paid links or “click through” advertising revenue constitutes bad faith. Respondent is using the domain names at issue to resolve to web sites—sites bearing Complainant's own logo—at which links to commercial entities, many of which are Complainant's competitors, are listed. Respondent is obviously deriving income from such links on a pay-per-click basis, which constitutes both bad faith registration and use. See ACCOR v. Steve Terry/North West Enterprise, Inc.,WIPO Case No. D2006-0649; Six Continents Hotels, Inc. v. NA InterMos,WIPO Case No. D2006-1313.
Second, the fact that Complainant's WIKIPEDIA trademark pre-dates Respondent's registration of and is noteworthy. Given Complainant's established rights in the WIKIPEDIA trademark and that Respondent's registered domain names are “so obviously connected with” Complainant, Respondent's actions suggest “opportunistic bad faith” in violation of the Policy. Research In Motion Limited v. Dustin Picov,WIPO Case No. D2001-0492. See also Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 (“it is not possible to conceive of a plausible circumstance in which the Respondent could legitimately use” the disputed domain name); Pancil LLC v. Domain Deluxe,WIPO Case No. D2003-1035; and Kate Spade LLC v. IQ Management Corporation,WIPO Case No. D2005-0109.
Third, the record shows that Respondent has engaged in a pattern of registering domain names that bear striking resemblance to famous marks, a pattern of conduct expressly forbidden by paragraph 4(b)(ii) of the Policy. Specifically, as annexed to the Complaint Respondent appears to have registered the following domain names: , , , and . Moreover, previous panels found at least two other domain names registered by Respondent to be identical or confusingly similar to another entity's trademark: Nike, Inc. v. Online Marketing Realty c/o Young Jin, NAF Claim No. 0713839 (transfer of ) and Movado LLC v. Online Marketing Realty,WIPO Case No. D2008-0757 (transfer of and ). This pattern of conduct clearly demonstrates bad faith on the part of Respondent.
Thus, the Panel concludes that Complainant has established the third element 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.
Lynda M. Braun
Sole Panelist
Dated: August 7, 2009
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