The Complainant is George A. Pardo, United States of America (“United States” or “U.S.”), appearing pro se.
The Respondent is Ken James, Clearly Innovative Lifetime Chairmats, United States, appearing pro se. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2021. On February 12, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 12, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s 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 February 23, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 15, 2021. The Respondent sent several emails on February 25, 2021, March 22, 2021 and March 23, 2021, in which the Respondent indicated that it was not contesting the Complaint, was willing to relinquish the disputed domain name to the Complainant, and had attempted to surrender the disputed domain name through the Registrar. On March 25, 2021, the Center sent an email to the parties indicating that, if they wanted to resolve the matter by having the disputed domain name transferred to the Complainant, they could agree to a suspension of the proceeding and could thereafter effectuate the settlement through the Center’s Standard Settlement Form. On March 31, 2021, the Complainant sent an email to the Center stating that he was willing to settle through that procedure. On March 31, 2021, the Center sent a Notification of Suspension to the parties. Although the Complainant made efforts to resolve the dispute through the Center’s Standard Settlement Form, the Respondent did not complete the form during the suspension period. Given the failure of settlement efforts, on April 29, 2021, the Complainant sent an email to the Center requesting to reinstitute the proceeding. Further to the Complainant’s request, the Center reinstated the present UDRP proceeding as of May 3, 2021. The Center appointed David H. Bernstein as the sole panelist in this matter on May 27, 2021. 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 owns U.S. trademark registration No. 4,452,473 for VITRAZZA for chair mats, which was registered on December 17, 2013. The Complainant sells its glass office chair mats through its website “www.vitrazza.com”. The Respondent registered the disputed domain name on November 12, 2018. The disputed domain name is a close variant of the Complainant’s VITRAZZA trademark, substituting two t’s for the mark’s one t, and one z for the mark’s two z’s. The disputed domain name redirects users to a third party website (“www.glasschairmats.com”) that competes with the Complainant. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to its VITRAZZA mark with the only deviation being the replacement of two t’s for one and one z for two. The Complainant contends that the Respondent intentionally chose the disputed domain name as a typographical variant of the Complainant’s VITRAZZA mark in order to spoof the Complainant’s domain name. The Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Complainant contends that the Respondent has no affiliation or connection with the VITRAZZA trademark, the Complainant, or the Complainant’s company Pardo & Associated Inc., and has never been authorized to use the trademark or domain name. Additionally, the Complainant contends that the disputed domain name was registered and is being used in bad faith. The Complainant asserts that the Respondent intentionally attempted to attract, for commercial gain, web users to its website by using a typographically spoofed domain name to create a likelihood of confusion with the Complainant’s marks as the source, sponsorship, affiliation, or endorsement of its website. The Complainant contends that Respondent’s bad faith is evidenced by the fact that the domain name redirects users to Clearly Innovative Lifetime Chairmats’ website (“www.glasschairmats.com”), a direct competitor, which will deceive users into believing that the website is the Complainant’s website. B. Respondent The Respondent did not reply substantively to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements that a Complainant must prove by a preponderance of evidence in order to obtain transfer of the disputed domain name: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name was registered and is being used in bad faith. Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) addresses the potential impact of the Respondent’s default: “Noting the burden of proof on the complainant, a respondent’s default (i.e., failure to submit a formal response) would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true.” Thus, notwithstanding the Respondent’s failure to respond to the Complaint, the burden remains on the Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. Also, the fact that the Respondent initially indicated that it was willing to relinquish the domain name is not dispositive, especially where there is some ambiguity with respect to the Respondent’s position given its failure to consent to the proposed settlement. See WIPO Overview 3.0, section 4.10. A. Identical or Confusingly Similar The Complainant has submitted evidence that it owns a federal registration for the VITRAZZA mark in the United States. As such, the Complainant has clearly established that it has rights in the VITRAZZA trademark. See WIPO Overview 3.0, section 1.2.1 (“Where the complainant holds a nationally or regionally registered trademark or service mark, this prima facie satisfies the threshold requirement of having trademark rights for purposes of standing to file a UDRP case.”). The Complainant has also established that the disputed domain name is confusingly similar to the Complainant’s VITRAZZA trademark in that the disputed domain name is an intentional misspelling of the Complainant’s trademark. See WIPO Overview 3.0, section 1.9 (“A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark […] Examples of such typos include […] (vi) the addition or interspersion of other terms or numbers.”). According to WIPO Overview, section 1.11, except in those cases where the Top-Level Domain (“TLD”) is relevant to the assessment of confusing similarity, Alstom v. WhoisGuard Protected, WhoisGuard, Inc. / Richard Lopez, Marines Supply Inc,WIPO Case No. D2021-0859, the TLD in a domain name (e.g., “.com”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Accordingly, the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name. The disputed domain name is classic typosquatting. It is a confusing, intentional misspelling of the Complainant’s trademark used to mislead users into believing that the Respondent’s competitive chair mats come from the Complainant. Such conduct is paradigmatically illegitimate. The Panel finds furthermore that the nature of the disputed domain name and the associated website content carries a high risk of implied affiliation with the Complainant’s trademark. See WIPO Overview 3.0, section 2.5.1. Such a false suggestion of affiliation is not a fair or legitimate use. Id., section 2.5 For these reasons, the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith For the same reasons that the Respondent’s use of the disputed domain name is illegitimate, it also was registered and used in bad faith. The Respondent’s effort to mislead online customers by spoofing the Complainant’s trademark with its intentional typosquatting is itself sufficient to establish bad faith registration and use. See WIPO Overview 3.0, section 1.9 (“[When] a domain name . . . consists of a common, obvious, or intentional misspelling of a trademark . . . panels will normally find that employing a misspelling in this way signals an intention on the part of the respondent (typically corroborated by infringing website content) to confuse users seeking or expecting the complainant.”), and conclusions made under section 6.A above. This misconduct is plainly an intentional attempt to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. See WIPO Overview 3.0, section 3.1.4; Policy, paragraph 4(b)(iv). In addition, the disputed domain name redirects Internet users to a competitor of the Complainant, thus further proving that the Respondent is, or should have been, aware of the Complainant’s reputation and trademark. See WIPO Overview 3.0, section 3.2.2. The Panel therefore concludes that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 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 David H. Bernstein
Sole Panelist
Date: June 8, 2021
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