Complainant is Starfall Education Foundation doing business as Starfall Education of Boulder, Colorado, United States of America, represented by Melkonian & Company, Australia.
Respondent is Hoang The Anh of Ha Noi, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 9, 2017. On February 10, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 13, 2017, the Registrar 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 12, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on March 13, 2017.
The Center appointed Clive L. Elliott Q.C. as the sole panelist in this matter on March 27, 2017. 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 advises that its trademark STARFALL ("Complainant's Mark") has been registered in many countries, including the United States of America, the European Union, Australia, and Canada, since as early as 2003 and that it also owns domain names and - which automatically transfer users to Complainant's ".com" website ("Complainant's Websites").
Complainant also advises that Complainant's Mark has been registered for, among others, the provision of educational tutorials in the fields of reading and literacy, distributing course materials in connection therewith; teaching in the field of remedial reading programs; providing information online and via the global computer network on education for children, parents and educators; and entertainment services, namely, providing online computer games for children, parents and educators.
According to WhoIs, the Domain Name was registered on May 4, 2015. 5. Parties' Contentions A. Complainant
Complainant states that the Domain Name is virtually identical to Complainant's Mark and Complainant's Websites, with the exception that the letter "a" in the word starfall has been substituted with the letter "u". Complainant contends that Respondent is typosquatting by using a misspelling of Complainant's Mark to create a competing website. Complainant's Mark is a fanciful name that is not descriptive of the literacy and numeracy educational services offered by Complainant. Complainant points out that there is a likelihood of confusion.
Complainant asserts that Respondent has not demonstrated any rights or legitimate interests with respect to the Domain Name, and access to Respondent's website shows that it is solely selling competing literacy products and services with Complainant's products and services. Complainant states that it is a not-for-profit entity and suggests that Respondent's practice is purely pernicious.
To the best of Complainant's knowledge, Respondent has never been known as "Starfull" and none of Complainant's trademark searches and constant monitoring of worldwide trademark applications have revealed any such entity. To the best of Complainant's knowledge, Respondent did not make use of the Domain Name until after Complainant's Mark had become well-known and well-established with a distinct secondary meaning among children, parents, and educators as a source of quality, non-commercial literacy and numeracy education for pre-school children. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant has established that it is the exclusive owner of the trademark STARFALL ("Complainant's Mark") which has been registered in various countries since 2003 and that it also owns domain names and - (used in conjunction with "Complainant's Websites"). Such rights date back to in or about 2003, which is well before the date of registration of the Domain Name.
It is apparent that by virtue of its trademark rights and its interests in Complainant's Websites that an unrelated entity using a similar domain name is likely to lead to members of the public being confused and deceived.
Complainant contends that slight variations of Complainant's Mark in the Domain Name takes advantage of typographical errors likely to be made by Internet users seeking Complainant's Websites and goods and services. This contention has obvious merit and is not challenged by Respondent.
On this basis, it is found that:
a) Complainant has rights in respect of Complainant's Mark.
b) The Domain Name is not identical to but confusingly similar to Complainant's Mark.
Accordingly, the Panel is satisfied that the first element of the Policy has been met. B. Rights or Legitimate Interests
Complainant contends that Respondent is using the Domain Name in connection with a website that redirects visitors to websites providing similar goods and services.
Complainant contends that Respondent has not demonstrated any rights or legitimate interests with respect to the Domain Name, and access to Respondent's websites shows that it is solely selling competing literacy products and services with Complainant's products and services.
It is reasonable to infer that Respondent's Websites allow Respondent to generate revenue from click-through activities by using a deliberately misspelled version of Complainant's Mark and Complainant's goodwill or reputation to attract Internet traffic. As before, these assertions are not disputed by Respondent.
The Panel is of the view that the Domain Name is being employed as a means of diverting Internet customers. In those circumstances, it is difficult to see how Respondent's conduct could be characterized as legitimate. The business model of "typo-squatting" and registering well-known trademarks and names as domain names and deriving revenue from "click through" business is all too well known.
On this basis, it is found that Respondent has no rights or legitimate interests in the Domain Name.
The Panel is satisfied that the second element of the Policy has been met. C. Registered and Used in Bad Faith
The Panel concludes that Respondent is engaged in typo-squatting and has intentionally attempted to attract for commercial gain Internet users to its websites or other online locations not related to Complainant and thereby creating a likelihood of confusion with Complainant and/or Complainant's Mark.
The Panel finds that Respondent registered and is using the Domain Name to take bad faith advantage of Internet users who may wish to access Complainant's website and that these Internet users are likely to be attracted to Respondent's websites and be misled as to their origins, sponsorship or association.
The Panel thus finds that the third limb of the Policy has been met. 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 Domain Name be transferred to Complainant.
Clive L. Elliott Q.C.
Sole Panelist
Date: April 4, 2017
Full & Egal Universal Law Academy