The Complainant is Apple Inc. of Cupertino, California, United States of America ("United States"), represented by Kilpatrick Townsend & Stockton LLP, United States.
The Respondent is Domain Admin of Nobby Beach, Queensland, Australia / Sergey Asmik of St. Petersburg, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with Media Elite Holdings Limited (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 13, 2014. On March 13, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 19 and March 26, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 1, 2014 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 April 3, 2014.
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 April 7, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 27, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 28, 2014.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on May 2, 2014. 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 an American multinational corporation that designs, develops and sells consumer electronics, computer software and personal computers.
The Complainant is the holder of substantial number of trademark and service mark registrations on the principal register of the United States Patent and Trademark Office ("USPTO") for the APPLE word mark and the APPLE logo design mark. Moreover, the Complainant is the owner of numerous registrations for the APPLE marks throughout the world, including but not limited to the countries of the European Union, China, Canada, Singapore, Kong Kong and Australia. The Complainant is the owner of the following trademarks:
- For the APPLE word mark: U.S. Reg. Nos. 1,078,312; 1,144,147; 1,895,326; 2,079,765; 2,808,567; 3,038,073; 3,226,289 and 3,621,571 covering goods and services in Classes 9,16,28, 36, 38, 40,41 and 42.
- For the APPLE logo design: U.S. Reg. Nos. 1,114,431; 2,715,578; 2,753,069; 2,870,477; 3,298,028 and 3,679,056 covering goods and services in Classes 9,16,28, 36, 38, 40,41 and 42.
The Domain Name was registered on March 20, 2002. 5. Parties' Contentions A. Complainant
In relation to the first element, the Complainant states that upon simple comparison the Domain Name is nearly identical and/or confusingly similar to Complainant's famous APPLE mark. The Domain Name contains exactly the mark APPLE with the replacement of "e" by "a". Such minor misspelling alteration in this context is an insignificant variation to Complainant's APPLE mark that does nothing to obviate the confusing similarity between the Domain Name and the APPLE mark.
Complainant also states that the Domain Name serves as a trap for unwary Internet users who mistype by accidentally adding a letter "a" instead of "e" in the Domain Name. Thus, a classic typosquatting intended to direct Internet users who misspell Complainant's trademark to Respondent's website.
In respect the second element of the test, the Complainant alleges that the Respondent has no legitimate interests in the Domain Name since there is no relationship between the parties giving rise to any license, permission, or other right. Further, the Domain Name is not, nor could it be contended to be, a name or a nickname of Respondent, or in any other way identified with or related to any rights or legitimate interest s of Respondent in accordance with paragraph 4(c)(ii) of the Policy. In addition, the Respondent is neither using the Domain Name in connection with a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the Domain Name. Rather, the Respondent is using the Domain Name as a click-through revenue search-engine website through various monetization services. Thus, Respondent is seeking to profit from the web traffic that is diverted through to third parties websites.
Finally, the Complainant claims that the Respondent has registered and is using the Domain Name in bad faith. Indeed, Respondent's bad faith registration is established by the fact that the Domain Name typosquats on Complainant's well-known APPLE mark and is being used to generate web traffic for a click-through revenue website. Besides, the Respondent is offering the Domain Name for sale on . Complainant states that it appears that Respondent is monetizing the Domain Name through Rook Media, as the domain name servers for the Domain Name are now Rook Media servers and the SearchResultsG service that purports to generate links at the Domain Name is operated by Rook Media. Like DomainSponsor, Rook Media provides various parking platforms and monetization services. Accordingly, the Complainant states that such registration and use of the Domain Name is in and of itself a form of opportunistic bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In order for the Panel to decide whether to grant the transfer of a domain name to a complainant under the Policy, it is necessary that the complainant must prove, as required by paragraph 4(a) of the Policy, that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(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.
The fact that the Respondent has not provided a Response to the Complaint does not relieve the Complainant of the burden of proving its case. In the absence of a Response, paragraph 5(e) of the Rules expressly requires the Panel to "decide the dispute based upon the complaint". Under paragraph 14(a) of the Rules, in the event of such a "Default", the Panel is still required "to proceed with a decision on the complaint", whilst under paragraph 14(b) it "shall draw such inferences there from as it considers appropriate". This domain name dispute resolution procedure is accepted by the Respondent as a condition of registration of the Domain Name in the Registration Agreement. Therefore, the Respondent should not gain any evidentiary benefit from its failure to participate.
Thus, where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. (See Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004; State of Wisconsin v. Pro-Life Domains, Inc.,WIPO Case No. D2003-0432). Here, the Respondent has defaulted, and it is appropriate in the present case for the Panel to accept the facts asserted by the Complainant and to draw adverse inferences of fact against the Respondent. A. Identical or Confusingly Similar
The Panel concludes that the Domain Name is confusingly similar to Complainant's APPLE mark for purposes of paragraph 4(a)(i) of the Policy. Undoubtelly, the Complainant has established rights in its APPLE mark through registration and use. Besides, the Complainant's mark is to be considered well-known and famous and thus, highly distinctive.
The Domain Name differs from the Complainant's mark only by the change of a single letter in the replacement of the letter "a" by the letter "e". The Respondent's registration of the Domain Name that constitutes a common mistyping of the Complainant's mark arises to be deliberate, a practice known as "typosquatting". Being that as it is, the Panel finds that the Domain Name and the Complainant's mark, when directly compared, are confusingly similar.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests
The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name.
No evidence that is before this Panel suggests that the Respondent has any rights or legitimate interests in the Domain Name. As argued by the Complainant, the Respondent is not known by the Domain Name, nor the Complainant has granted any license or authority to use the Complainant's trademark and neither the Respondent has made a legitimate noncommercial or fair use of the Domain Name, as it appears to the Panel that the Respondent profits from click-through revenues generated from its website's offering of hyperlinks.
The Respondent not having answered to rebut Complainant's allegations, the Panel cannot find out any of the circumstances specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the domain name.
In these circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name and that the Complainant has therefore satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel has considered Complainant's assertions and evidence with regard to the Respondent's registration and use of the Domain Name in bad faith. By not submitting a Response, Respondent has failed to invoke any circumstances that could demonstrate that Respondent did not register and is using the Domain Name at issue in bad faith.
Indeed, the Complainant has established that APPLE trademarks have been used extensively throughout the world and that Complainant's trademarks are famous and valuable. Accordingly, it is very unlikely that Respondent would have registered unless it believed the existence of the Domain Name might be of some type of economic advantage. Thus, the Panel finds that the Domain Name has been registered in bad faith.
On the other hand, the bad faith use of the disputed domain name is based on a previous knowledge of Complainant's mark by Respondent. The website at the Domain Name is being used as a parking page linked to Complainant's goods and services, featuring hyperlinks using Complainant's various marks, such as "Apple Laptops," "Apple iMac Desktop," "Apple iPad," "iPhone 5," "iPhone 4S," "Discount iPod," "Apple Downloads," and "Apple Stores,". The click-through-revenues obtained afterwards, and by the offering through the means of an auction of the Domain Name to the public in general. Under this circumstances, the Panel finds that the Domain Name is being used in bad faith.
The Panel concludes, therefore, that the Domain Name was registered and is being used in bad faith for purposes of Policy, paragraph 4(b). 7. Decision
For 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 the Complainant.
Manuel Moreno-Torres
Sole Panelist
Date: May 13, 2014
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