Complainant is Migros-Genossenschafts-Bund of Zurich, Switzerland, represented by Baker & McKenzie, Switzerland.
Respondent is Thomas Stirnimann, Interhome AG of Copenhagen, Denmark. 2. The Domain Name and Registrar
The disputed domain name is registered with T, Inc.1 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 2, 2010. On August 2, 2010, the Center transmitted by email to T, Inc. a request for registrar verification in connection with the disputed domain name. On August 16, 2010, T, Inc. transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on August 26, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 15, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 16, 2010.
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on September 24, 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
Complainant owns trademark registrations for the mark INTERHOME, including Swiss trademark registration number P-470968 for services in class 42 with a priority date of January 12, 2000 and International Trademark Registration number 740788 for services in class 42, which is protected for Denmark.
The disputed domain name was registered May 1, 2010 and currently does not route to an active website.2 5. Parties’ Contentions A. Complainant
Complainant alleges that INTERHOME is a well-known trademark and that its company Interhome AG, domiciled in Opfikon, Switzerland, is the largest provider of quality holiday apartments and villas in Europe. Complainant avers that Interhome AG has more than 300 employees and that more than 500 000 clients contact Interhome AG to book their holiday annually. Complaint also avers that through an intermediary holding company, Complainant owns 100% of the shares of the Swiss company Interhome AG.
Complainant describes the background of this dispute as follows:
“The domain name has been registered by Respondent under the name of "Thomas Stirnimann", which is likely an alias name. Complainant is the owner of the company Interhome AG and the trademark INTERHOME. Interhome AG is the owner of the domain name . The domain name L was registered and is being used in the context of an internet scam. The facts described below show that Respondent or one of his accomplices using the alias "Rodolphe Weyermann" falsifies documents to create the impression that he is employed by Interhome AG in order to scam third parties by alleging that Interhome AG will employ them. The purpose of these actions is obviously to have these third parties create bank accounts in good faith via which Respondent can transfer money to other third party accounts. In the course of this scam, Respondent uses the domain name L to create email addresses, which look similar to email addresses of (e.g. rodolphe.weyermann@ looks very similar to rodolphe.weyermann@). It seems that this scam is used for money laundering. The domain name used by Respondent is very similar to the trademark of Complainant. Indeed, this is a typical case of ‘typo-squatting’. The Respondent obviously has no legitimate interest in the domain name and it was registered and is being used in bad faith. In fact, the registration was made and the domain name is being used solely to scam third parties into believing that they are dealing with Complainant when they are not.”
Complainant provides copies of the correspondence described above, including offers of employment which were allegedly sent using the name of a fictitious senior manager of Interhome AG. These emails were sent with a postal address identical to the registrant information listed in the WhoIs listing for the disputed domain name, displaying the logo of Interhome AG and attaching an independent contractor agreement falsely indicating that it was from Interhome AG. Complainant also avers that the name of Respondent is the same as the name of the CEO of Hotelplan Holding AG. Complainant avers that it has checked with Danish authorities, and that neither Respondent nor the likely accomplice or alias “Rodolphe Weyermann” are listed as being in Denmark or at the address or phone numbers indicated.
The Complaint also attaches correspondence respecting a third party allegedly induced into making payments on false premises to accounts controlled by Mr. Weyermann or Respondent, the third party apparently believing that he was doing business with Interhome AG.
The Complaint further alleges:
“The domain name L in minuscules looks identical to when typing the first letter ‘i’ as a capital and all the other letters in minuscules (I).
The emails of Mr. Weyermann contain a hyperlink to L which is then being re-directed to the official website of Interhome AG.
Thus, Respondent or his accomplice ("Mr. Weyermann") uses the domain name L to give himself credibility in the course of his scam and appear as a real employee of Interhome AG - although he is not.
Respondent obviously operates a scam, inter alia in the USA, Australia and Vietnam as described in the annexed email correspondence with third parties. Respondent (posing as ‘Mr. Weyermann’) contacts persons who are registered on job seeking websites and offers them a position with Interhome AG, e.g. Regional Manager for the United States. Two recipients of such emails even created new business entities, opened business accounts and sent account details to Respondent in order to work as Regional Manager in the United States as offered by ‘Mr. Weyermann’ . . .. Respondent then transfers money through such business accounts.”
Complainant makes the following legal allegations:
“Respondent has knowingly registered a domain name that infringes Complainant's trademark rights and is aware that the domain name “www.” is only a small typo away from this well-known trademark. A person or company would not have registered the domain name “www.L” if it had not known that INTERHOME is well-known in Switzerland and Europe.
There is no evidence whatsoever of Respondent's use of the domain name in connection with a bona fide offering of goods or services. In fact, Respondent does not use the domain name for a proper website at all but the website “www.” directly re-directs to the website “www.”, which the website of Complainant's company Interhome AG in order to give more credibility to Respondent's scam.
Thus, Respondent cannot rely on a right of his own or any legitimate interest to use the registered trademark INTERHOME or the confusingly similar term Lnterhome.
Respondent is not authorized by and has no other links to Complainant or Complainant's business and is not commonly known as an individual, business or organization by the domain name.
Respondent is not making a legitimate noncommercial or fair use of the domain name.
In conclusion Respondent has no rights or legitimate interests in respect of the domain name L or .
Respondent is obviously using false names and contact information. In similar situations WIPO Panels have found that that providing false contact information to the Registrar with which the domain name is registered demonstrates Respondent's bad faith . . .”
On the basis of the above allegations, Complainant seeks cancellation of the disputed domain name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Notification of Proceedings to Respondent
The Policy is intended to resolve disputes concerning allegations of abusive domain name registration or acquisition, in an efficient manner. Fundamental due process requirements must nonetheless be met. The requirement that a respondent have notice of proceedings that may substantially affect its rights is such a fundamental requirement. The Policy and the Rules establish procedures to assure that respondents receive adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
The Center notified Respondent of these proceedings by using a courier service, directed to the address listed in the WhoIs record for the domain name. The courier package was not deliverable at Respondent’s listed address. The Center also notified Respondent by using email addresses and fax numbers provided by the registrar in its verification response to the Center. There was no fax machine response following several transmission attempts.
The Panel is satisfied that by sending communications to the contacts made available through the registrar, and those provided by the registrant to the registrar as listed in the WhoIs records, the Center has exercised care and has fulfilled its responsibility under paragraph 2 of the Rules to employ all reasonably available means to serve actual notice of the Complaint upon the Respondent. B. Substance of the Complaint and Applicable Standards
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(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.
Complainant must establish these elements even if the respondent does not reply. The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). C. Identical or Confusingly Similar
Although the disputed domain name is not identical to Complainant’s trademark INTERHOME, the Panel agrees with Complainant that Respondent’s domain name is confusingly similar.
Panels disregard the domain name suffix in evaluating confusing similarity. E.g., VAT Holding AG v. VAT.com,WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc.,WIPO Case No. D2006-1315. Removing the suffix, the disputed domain name is almost identical to Complainant’s trademarks.
The difference between the initial lower case letter “L” in “Interhome” in place of a capital letter “i” (as in Complainant’s company and trademark INTERHOME) is nearly indiscernible to the naked eye in many typefaces. The substitution of the letter “L” for the letter “i” in the disputed domain name therefore does not change the Panel’s conclusion that the domain name is confusingly similar to Complainant’s trademark.
The Panel finds that it is established beyond question that Complainant’s trademark was intentionally misspelled by Respondent in order to create the impression that Respondent is associated with Interhome AG. Such “typosquatting” has regularly been condemned by UDRP panels. See, e.g., Nasdaq Stock Market, Inc. v. N, N and N, WIPO Case No. D2001-1492, cited in Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Verisign, Inc. v. Onlinemalls,WIPO Case No. D2000-1446.
The Panel finds, therefore, that the disputed domain name is confusingly similar to Complainant’s registered trademark and that the requirements in paragraph 4(a)(i) of the Policy are fulfilled. D. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i)-(iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests. E.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005).
Complainant avers that Respondent is not commonly known by the disputed domain name, that Respondent has no authorization from or connection to Complainant, and has no right of its own or legitimate reason to use Complainant’s trademark . In the absence of a response, the Panel accepts as true these undisputed factual averments by Complainant.
The Panel also notes that the disputed domain name does not route to an active website, thus suggesting that no noncommercial or fair use is being made.
Filing no response, Respondent has not invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the disputed domain name.
On the basis of the record in this case, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied. E. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which are evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name;
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct;
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
These circumstances are not exhaustive, however, and panels may draw inferences about bad faith registration or use in light of the circumstances, including a including a lack of conceivable good faith uses for the disputed domain name, a respondent’s concealment of identity, or the failure to reply to a complaint. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
In the present case, there can be little doubt that Respondent had full knowledge of the existence of Complainant’s trademark; only someone familiar with Complainant’s trademark would have registered a domain name so similar. Compare British Sky Broadcasting Group plc. v. Mr. Pablo Merino and Sky Services S.A.,WIPO Case No. D2004-0131. Such an inference is particularly appropriate in cases of typosquatting. Volvo Trademark Holding AB, supra. The Panel therefore finds that Respondent knew of Complainant’s trademark when registering the disputed domain name. This amounts to registration in bad faith.
The Panel also finds that the emails annexed to the Complaint allegedly offering employment to third parties are, as suggested by Complainant, evidence of fraudulent activity. The letters on their face indicate the same invalid address as that used to register the disputed domain name. Whoever is actually behind the letters and the registration of the disputed domain name, it is clear that the disputed domain name was acquired with the intention to employ it for the purpose of creating confusion as to identity. The Panel finds that this is further evidence of registration in bad faith.
It only remains for the Panel to determine whether Respondent, in addition to registering in bad faith, is also using the disputed domain names in bad faith.3 Despite the fact that the record contains little evidence relating to the four illustrative circumstances in paragraph 4(b) of the Policy, the Panel nevertheless concludes that Respondent is also using the domain names in bad faith.
In many decisions involving inactive websites or so-called “passive holding,” UDRP panels have adhered to the approach outlined in Telstra Corporation Limited v. Nuclear Marshmallows, supra. In Telstra, the panel explored the question of which circumstances of inaction, or passive holding, beyond those identified in paragraphs 4(b)(i), (ii) and (iii) of the Policy, constituted use of a domain name in bad faith.
The Telstra Panel explained that
“[t]his question cannot be answered in the abstract; the question can only be answered in respect of the particular facts of a specific case. That is to say, in considering whether the passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the Administrative Panel must give close attention to all the circumstances of the Respondent’s behaviour. A remedy can be obtained under the Uniform Policy only if those circumstances show that the Respondent’s passive holding amounts to acting in bad faith.”
Following the approach of Telstra, then, the Panel finds that circumstances indicating bad faith use in this case include (1) the two findings of the Panel above respecting bad faith registration (prior knowledge of Complainant’s trademark and the use of the disputed domain name in an apparent scheme to defraud third parties); (2) a lack of conceivable good faith uses for the disputed domain name; (3) Respondent’s attempt to conceal its identity by providing false contact information to the registrar; and (4) Respondent’s failure to respond to the Complaint.
In the absence of a response from Respondent, this Panel must conclude on the record before it that Respondent has registered and is using the disputed domain name in bad faith and that paragraph 4(a)(iii) of the Policy is also satisfied. 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 cancelled.
Jeffrey D. Steinhardt
Sole Panelist
Dated: October 8, 2010
1 The disputed domain name commences with the letter “l” which is actually a lower case character of the letter “L”. Since in many sans-serif typefaces, a lower case letter “l” is visually close to an upper case of the letter “i,” for clarity in this decision, a capital letter “L” is substituted at times for the lower case “l” in references to the disputed domain name.
2 The Panel has undertaken limited research by visiting the web pages to which the disputed domain name routes. See Paragraph No. 4.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions. The use of common Internet search engines such as Google routes users inputting the text of the disputed domain name into a search box to links including the websites of Complainant’s company, Interhome AG.
3 Both the elements of bad faith registration and bad faith use must be established. E.g., E. & J. Gallo Winery v. Hanna Law Firm,WIPO Case No. D2000-0615; Telstra Corporation Limited v. Nuclear Marshmallows, supra.
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