The Complainant is Autosales Incorporated, dba Summit Racing Equipment, Ohio, United States of America, represented by Buckingham, Doolittle & Burroughs, LLP, United States of America.
The Respondent is Moniker Privacy Services [2731514], United States of America / Registrant [2909991]: Charlie Kalopungi, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2010. On July 1, 2010, the Center transmitted by email to Moniker Online Services, LLC. a request for registrar verification in connection with the disputed domain name. On July 6, 2010, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 13, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 15, 2010.
The Center verified that the Complaint together with the amended 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 July 16, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 5, 2010. The Respondent did not submit a response. Accordingly, the Center notified the Respondent’s default on August 10, 2010.
The Center appointed Adam Samuel as the sole panelist in this matter on August 23, 2010. 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 the owner of United States trademark no. 2,547,445 registered on March 12, 2002 for SUMMITRACING.COM. It sells automobile parts. The disputed domain name was registered on May 15, 2010. 5. Parties’ Contentions A. Complainant
This section sets out the Complainant’s contentions with which the Panel may or may not agree.
The disputed domain name is phonetically and confusingly similar to the Complainant’s trademark and domain name involving the exchange of the first ‘m’ in the domain name for a ‘u’. Common misspellings are not enough to create a distinct mark and defeat a claim of confusing similarity.
The Complainant is unaware of any evidence to establish that the Respondent is commonly known by the disputed domain name. It appears that the Respondent is attempting to palm off the goodwill that the Complainant has built in the name SUMMIT RACING in the field of auto parts. Why else would the Respondent use the same name with a minor change of one letter to create the disputed domain name?
The disputed domain name is a minor degree of variation from the Complainant’s trademark which itself constitutes evidence of bad faith. When a user mis-types the Complainant’s legitimate domain name by changing the first ‘m’ to a ‘u’, the user is directed to a link farm. In this way, the Respondent is purposefully frustrating Internet users from visiting the Complainant’s website. The Complainant’s potential loss of customers due to Internet user impatience, caused by the Respondent’s deliberate attempts to generate confusion, disrupts the Complainant’s business, and constitutes bad faith. When the domain name is confusingly similar to the Complainant’s marks, as is the case with the disputed domain name, the average Internet user will probably but wrongly believe that there is an affiliation between the Complainant and the Respondent. 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 disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name is identical to the Complainant’s trademark except for one letter which makes no significant phonetic difference and involves typing one letter (‘u’) twice and the next letter (‘m’) once instead of twice. This appears to be a classic case typo-squatting where the Respondent seeks to attract the attention of people seeking the Complainant’s website but who mis-type the domain name.
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 similar reasons, the Panel concludes here that the disputed domain name is confusingly similar to the Complainant’s registered trademark. B. Rights or Legitimate Interests
The Respondent is not called Summit Racing or anything similar and does not appear to trade under that or any related name. 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. For these reasons, on the basis of the available record, notably the absence of a Response in spite of notification of the Complaint in accordance with the Rules, 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, “suumit”, has no independent significance or meaning except as a misspelling of part of the Complainant’s trademark. This was registered well before the disputed domain name was registered. In this Panel’s view, it is difficult, 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.
The only explanation of what has happened is that the Respondent’s motives in registering and using the domain name seems to be 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.
This conclusion is supported by the view expressed by the panel 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 disputed domain name was registered and is being used in bad faith. 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: August 26, 2010
Full & Egal Universal Law Academy