The Complainant is Wikimedia Foundation, Inc., United States of America (“United States”), represented by Jones Day, United States.
The Respondent is Domain Administrator, Fundacion Privacy Services LTD, Panama. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 19, 2020. On March 19, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 20, 2020, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on March 30, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 19, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 20, 2020. The Center appointed Wolter Wefers Bettink as the sole panelist in this matter on April 23, 2020. 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 a nonprofit charitable organization dedicated to encouraging the growth, development, and distribution of free, multilingual, educational content. The Complainant was founded in 2003, and today manages 13 free knowledge projects, including Wikipedia, a free, online encyclopedia compiled, edited, and maintained by over 123,000 active contributors. The Complainant is the registered owner of inter alia the following trade marks (collectively hereafter referred to as the “Trade Marks”): - United States registration WIKIPEDIA no. 3,040,722, registered on January 10, 2006; - United States registration WIKIPEDIA no. 3,505,429, registered on September 23, 2008; - International registration WIKIPEDIA no. 839132, registered on December 16, 2004, designating the European Union; and, - International registration WIKIPEDIA no. 907474, registered on September 20, 2006, designating eighty jurisdictions. The Domain Name was registered on May 5, 2007. The Domain Name dynamically redirects to a multitude of third-party web pages at various domain names. 5. Parties’ Contentions A. Complainant According to the Complainant, the Domain Name is confusingly similar to the Trade Marks as it contains the WIKIPEDIA mark with the mere substitution of the letter “r” for the letter “e”, which in the view of the Complainant has no distinguishing capacity in reference to the Trade Marks. The Complainant submits that the Respondent has no legitimate interest in the Domain Name as it is not a licensee of or otherwise affiliated with the Complainant and the Complainant has never authorized or otherwise condoned or consented to the Respondent’s registration of the Domain Name. Furthermore, the Complainant contends, there is no evidence to suggest that the Respondent is or has been commonly known by the terms “wikipedia”, “wikiprdia”, or any variation thereof. In addition, the Complainant submits, the Respondent has not made any preparations to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services, nor has the Respondent used the Domain Name for any legitimate noncommercial or fair use purpose. The Complainant states that the Respondent has registered and is using the Domain Name to capitalize on Internet users’ misspelling of the Complainant’s domain name According to the Complainant, the Respondent reserved, used, and is holding the Domain Name willfully, in bad faith, and in disregard of the Complainant’s exclusive rights to the Trade Marks. The Complainant contends that evidence suggests that Respondent was well-acquainted with the Trade Marks when it registered the Domain Name in 2007 since, as a direct result of the considerable time, effort, money, and promotion of the Trade Marks, they have come to serve as a unique identifier of goods and services emanating from Complainant and are extremely well known throughout the world, such that when consumers see the Domain Name, they will likely assume the associated website will direct them to one of the Complainant’s websites and the goods and services that the Complainant provides in connection therewith. In addition, the Complainant submits that the Respondent is trading on the value of the Trade Marks by typosquatting, pointing out that the Domain Name redirects users to third-party websites that have no relationship to the Complainant or the Trade Marks, apparently – in view of the commercial nature of some of the web pages that appear – in exchange for a fee. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has shown that it has registered rights in the Trade Marks. The Domain Name is confusingly similar to the Trade Marks as it incorporates WIKIPEDIA, of which the Trade Marks consist, in its entirety, be it with a misspelling consisting of an “r” instead of the “e”. As the Domain Name consists of a common, obvious, or intentional misspelling of the Trade Marks, noting also that “r” on the QWERTY keyboard is next to “e”, this does not affect the confusing similarity of the Domain Name to the Trade Marks for purposes of the first element (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9 and, inter alia, Allianz SE v. WhoisGuard Protected, WhoisGuard, Inc. / Azir Malik,WIPO Case No. D2019-2511). The generic Top-Level Domain (“gTLD”) “.com” is typically disregarded under the confusing similarity test, since it is a technical registration requirement (see WIPO Overview 3.0, section 1.11). Therefore, the Panel finds that the Domain Name is confusingly similar to the Trade Marks in which the Complainant has rights. B. Rights or Legitimate Interests Under paragraph 4(c) of the Policy, the second element a complainant has to prove is that a respondent lacks rights or legitimate interests in a domain name. This may result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge or control of the respondent. In order to satisfy the second element, the Complainant has to make out a prima facie case that the Respondent does not have rights or legitimate interests in the Domain Name. If the Complainant succeeds in doing so, the burden of production on this element shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the Domain Name. If the Respondent fails to come forward with such relevant evidence, the Complainant is deemed to have satisfied the second element (See WIPO Overview 3.0, section 2.1). Based on the evidence and the undisputed submissions of the Complainant, the Panel concludes that the Respondent has not received the Complainant’s consent to use or register the Trade Marks as part of the Domain Name, is not commonly known by the Domain Name and has not acquired trade mark rights in the Domain Name. Furthermore, the Complainant has submitted as evidence screen shots of landing pages to which the Domain Name directs, and web pages to which these landing pages resolve, showing commercial third party offerings. Therefore, the Domain Name is used to profit from Internet users’ misspelling of the Trade Marks and it is evident that the Domain Name is not used for a bona fide offering of goods or services, nor does its use constitute a legitimate noncommercial or fair use. In view of the above, the Panel concludes that the Complainant has established that the Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith Based on the information and the evidence provided by the Complainant, the Panel finds that at the time of registration of the Domain Name the Respondent was or should have been aware of the Trade Marks, since: - the Respondent’s registration of the Domain Name occurred four years after the Complainant started its business and three years after registration of the earliest of the Trade Marks; - the WIKIPEDIA mark is not a dictionary term, nor a term of which it is likely that a registrant would spontaneously think at the time of registration of the Domain Name; - the typo in the Domain Name, substituting the “e” for an “r”, a likely mistake an Internet user would make when looking for “Wikipedia”; and, - a simple trade mark register search, or even an Internet search, prior to registration of the Domain Name in its name would have informed the Respondent of the existence of the oldest Trade Marks. The Panel further finds that the evidence submitted by the Complainant shows that by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the Trade Marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location, or of a product or service on the Respondent’s website or location to which the Domain Name resolves. In addition, the following circumstances taken together warrant a finding of bad faith use of the Domain Name: - the probability that the Respondent was aware or should have been aware of the Complainant’s rights in the Trade Marks; - the use of a privacy shield upon the initial registration of the Domain Name; - the lack of a formal Response of the Respondent. Therefore, the Panel concludes that the Domain Name has been registered and is being used in bad faith. 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 Wolter Wefers Bettink
Sole Panelist
Date: May 7, 2020
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