Complainant is Apple Inc. of Cupertino, California, United States of America, represented by the law firm Kilpatrick Stockton LLP, United States of America.
Respondent is Andrew Sievright, Domain Source of Redding, California, United States of America. 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 November 10, 2010. On November 10, 2010, the Center transmitted by email to Moniker Online Services, LLC. a request for registrar verification in connection with the disputed domain name. On November 11, 2010, Moniker Online Services, LLC. 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 Complainant on November 11, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on November 12, 2010.
The Center verified that the Complaint together with the Amendment to 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 November 15, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 5, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 6, 2010.
The Center appointed Richard G. Lyon as the sole panelist in this matter on December 6, 2010. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. The Panel has submitted his 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 the world-renowned maker of computers, telephones, and other electronic products, and software applications; Complainant also provides computer- and communications-related services worldwide. Complainant holds many trademarks for APPLE, APPLE and design, and APPLE plus product- or service-descriptive words (e.g., APPLE STORE) that are registered in the United States Patent and Trademark Office and in many comparable national registries around the world. Complainant spends substantial sums promoting its products, services, and marks, in the United States of America (the jurisdiction in which Respondent is located) and in other countries. In the computer business the APPLE marks are undeniably famous.
Respondent operates an online marketplace for domain names. According to Complainant it registered the disputed domain name in May 2005, since which time it has been used as a pay-per-click page, with hyperlinks to many products, including those of Complainant. Several links direct an Internet user to Complainant’s website. Others take the user to third party sites, among them second-level pay-per-click sites (i.e. a second page of hyperlinks). 5. Parties’ Contentions
Complainant contends that the disputed domain name is confusingly similar to its APPLE trademarks; that Respondent has no right or legitimate interest in the disputed domain name; and that Respondent registered and has used the disputed domain name in bad faith. Complainant’s contentions may be summarized as calling Respondent’s actions “a classic case of typo-squatting”. The Panel briefly addresses one of Complainant’s specific contentions in Section 6 of this Decision.
Respondent did not reply to the Complaint. 6. Discussion and Findings
The Complaint and its supporting evidence easily satisfy all necessary requirements of paragraph 4(a) of the Policy. The disputed domain name is identical to Complainant’s registered marks but for the deletion of the final “e”, making confusing similarity obvious. Complainant has demonstrated and the record reveals no rights or legitimate interests in the disputed domain name by Respondent, and the evidence furnished by Complainant demonstrates that Respondent falls clearly within the examples of bad faith set out in paragraphs 4(b)(ii)1 and 4(b)(iv) of the Policy. The content at the hyperlinks page to which the disputed domain name resolves has continuously since Respondent’s acquisition included links that indicate knowledge of Complainant and its APPLE marks, so there is no question that Respondent both registered and used the disputed domain name in bad faith. This is indeed, as Complainant argues, a textbook example of typosquatting. Typosquatting is as close as it is possible to come to per se cybersquatting.
It matters naught that Complainant initiated this proceeding five years after Respondent’s alleged registration and first use of the disputed domain name. It is now almost universally accepted that the common law doctrines of laches or estoppel are not applicable in Policy proceedings. See, e.g., Technicolor SA, Technicolor Trademark Management SAS v. Bucks Laboratories, WIPO Case No. D2010-1564. While longtime use for a legitimate purpose may sometimes provide a defense under paragraphs 4(c)(i) or 4(c)(ii) of the Policy there is nothing in the record of this case to show any special identification of Respondent with the letters at issue, the word apple, or legitimate use of the disputed domain name.
Although not impacting the result in this proceeding, the Panel wishes to comment on one contention advanced by Complainant. Complaint argues:
“Where, however, as here, Complainant’s APPLE Marks are so well-known and recognized, there can be no rights or legitimate use by Respondent. See, e.g., Nike, Inc. v. B.B. de Boer,WIPO Case No. D2000-1397 (‘given that Complainant’s trademark is distinctive and famous to the point where it may not be used by other persons even in fields or industries unrelated to Complainant’s activities, one would be hard pressed to find a person who may show a right or legitimate interest in a domain name containing Complainant’s trademark’); Veuve Clicquot Ponsardin v. The Polygenix Group Co.,WIPO Case No. D2000-0163 (bad faith is found where a domain name ‘is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith’).”
The predicate for this contention, that Complainant’s mark is distinctive, is accurate but not complete. Complainant’s mark is undeniably distinctive for computers and the other products and services offered by Complainant. As noted in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 2.2, however, “apple” is a dictionary word and not necessarily distinctive for apples, fruit, groceries, or similar produce. Similarly, the four-letter sequence that comprises the disputed domain name could be an abbreviation for other common words, such as “appliance” or “application”. What makes Respondent’s conduct obvious cybersquatting is the similarity of the disputed domain name to the APPLE mark combined with competitive use, sometimes called “targeting” Complainant and its marks. Even the renown of Complainant and its marks does not confer a worldwide monopoly on the right to use the word APPLE or a variant in a domain name, under the Policy or under United States trademark law. The Panel points this out in the hope that Complainant, unlike some other owners of famous brands that incorporate common words,2 will limit its vigilance to proper circumstances, as it apparently has so far done. 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 disputed domain name be transferred to Complainant.
Richard G. Lyon
Sole Panelist
Dated: December 8, 2010
1 What constitutes a “pattern” for purposes of paragraph 4(a)(ii) is more than a numbers game, but the raft of cases brought successfully against Respondent by themselves come as close to meeting that Policy requirement as statistics alone can do.
2 See, e.g., PRL USA Holdings, Inc. v. Polo Ung;WIPO Case No. D2002-0250; PRL USA Holdings, Inc. v. Alvaro Collazo,WIPO Case No. D2002-0108.
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