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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, d/b/a Cupcake Patrol

Case No. D2001-0302

 

1. The Parties

1.1 The Complainants are Dow Jones & Company, Inc., a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal place of business at 200 Liberty Street, New York, New York, United States of America, and Dow Jones LP, a Delaware limited partnership with a principal place of business in Chicopee, Massachusetts, United States of America. Complainant Dow Jones & Company, Inc. is the limited partner of Complainant Dow Jones LP. Dow Jones Ventures V, Inc., a wholly owned subsidiary of Complainant Dow Jones & Company, Inc., is the general partner of Complainant Dow Jones LP. Because of these interconnections complainants will hereafter be referred to individually and collectively as "Complainant."

1.2 The Respondent is John Zuccarini, d/b/a Cupcake Patrol. Prior Panel decisions have established that Cupcake Patrol is a name under which John Zuccarini conducts business. Cabela's Incorporated v. Cupcake Patrol, ICANN Case No. FA95080; Gamesville.com Inc. v. John Zuccarini, ICANN Case No. FA95294. John Zuccarini lists his present address at Music Wave Investments Ltd., Saffrey Square, Suite 106, P.O. Box N-4140, Nassau N.P., Bahamas.

 

2. The Domain Name and Registrar

The domain names at issue are <wallstreetjounral.com>, <wallstreetjouranl.com>, <wallsreetjournal.com>, and <wallsteetjournal.com> which domain names are registered with CORE Council of Registrars based in Geneva, Switzerland ("CORE").

 

3. Procedural History

3.1 A Complaint was submitted to the WIPO Center on March 2, 2001.

3.2 By transmission dated March 12, 2001, CORE confirmed by e-mail that the domain names at issue are registered with CORE, are currently in active status, and that the Respondent is the current registrant of the names. The registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect.

3.3 The WIPO Center determined that the Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a single-member Panel were paid on time and in the required amount by the Complainant.

3.4 No formal deficiencies having been recorded, on March 12, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, dotTV and ICANN), setting a deadline of March 31, 2001, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by courier and by e-mail to the e-mail addresses indicated in the Complaint. In any event, evidence of proper notice is provided by the evidence in the record of the Respondent’s participation in these proceedings.

3.5 A Response was received on March 13, 2001. An Acknowledgment of Receipt (Response) was sent by the WIPO Center on March 15, 2001. Respondent requested a three-person panel and the required fees therefor were paid on time and in the required amount by the Respondent.

3.6 On April 24, 2001, the WIPO Center Sent a Notification of Panel Appointment, appointing David Plant, James Carmody, and Scott Donahey, all of whom had previously submitted a Statement of Acceptance and Declaration of Impartiality and Independence. Scott Donahey was designated as presiding panelist.

 

4. Factual Background

4.1 Complainant first registered THE WALL STREET JOURNAL mark with the United States Patent and Trademark Office ("USPTO") in connection with a daily newspaper concerning business and finance on August 8, 1944. The mark was registered many times thereafter with the United States Patent Office and with patent offices in countries around the globe.

4.2 Complainant publishes a daily newspaper under The Wall Street Journal name that provides business financial, and other news to millions of readers each business day. In addition to the United States publication, Complainant publishes The Wall Street Journal Europe and The Asian Wall Street Journal. Complainant name and trademark are recognized around the world

4.3 Complainant promotes its trademarked newspaper by way of television and radio advertising, billboards, and print advertising. In 1999 alone Complainant spent more than US$68 million in such promotion.

4.4 Complainant has registered the domain name <wsj.com>, which resolves to a website featuring breaking worldwide news coverage and in-depth news stories. Complainant has also registered the domain names <wallstreetjournal.com> and <thewallstreetjournal.com> that link to the website. In the year 2000, Complainant realized revenue for its network of websites of over US$50 million.

4.5 On June 10, 2000, Respondent registered the four domain names at issue. Prior to January 2001, Respondent was using the domain names to create links to a website maintained at the URL http://wallstreetjournel.com. When a user arrived at that website, the user saw the words, "I Read the Wall Street Journal -- How About You! -- I also Read . . ." After approximately five seconds the user was linked to a website at the URL http://www.law.emory.edu/FEDERAL/usconst.html, at which was posted the Constitution of the United States of America. A few seconds later a window opened to a website located at http://e-cardssucks.com. The domain name <e-cardssucks.com> is registered to Respondent. Complaint, Annexes K and L. In January 2001 pursuant to the Panel Decision in Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, ICANN Case No. D2000-0578, the domain name <wallstreetjournel.com> was transferred to the Complainant.

4.6 Since the transfer, Respondent has been using the domain names at issue to link to a website to which Respondent's domain name <wallsteetjournal.com> resolves. That website contains the same initial message as the previous one, followed by the same link and window as described in paragraph 4.5, supra. The Internet user is unable to leave the original web page by activating the "back" button on the browser, but must enter a new URL in order to escape. Complaint, Annex M.

 

5. Parties’ Contentions

5.1 Complainant contends that Respondent is engaged in "typosquatting" by registering domain names which are only slight misspellings of Complainant's mark and which are confusingly similar to the trademarks and service marks registered and used by Complainant, that Respondent has no rights or legitimate interests in respect of the domain names at issue, and that Respondent has registered and is using the domain names at issue in bad faith.

5.2 Respondent contends that the World Intellectual Property Organization lacks authority to hear the case, that the ICANN Policy and the Uniform Rules violate unidentified provision of the Constitution of the United States of America, as well as unidentified provisions of the Constitutions of other unidentified States, as well as unidentified State and Federal Statutes. Respondent contends that the domain names are being used to exercise free speech.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable."

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(1) that the domain names registered by the Respondent are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,

(2) that the Respondent has no rights or legitimate interests in respect of the domain names; and,

(3) that the domain names have been registered and are being used in bad faith.

The Panel is asked to determine that the domain names at issue come within the "Consolidation" provision of the Policy. Policy, ¶ 4(f). That paragraph provides in pertinent part: "In the event of multiple disputes between [a respondent] and a complainant, either [the respondent] or the complainant may petition to consolidate the disputes before a single Administrative Panel. . . . [The] Administrative Panel may consolidate before it any or such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy."

The Panel notes that the Complainant has alleged that the domain names at issued were all registered by or on behalf of a certain individual, and that Respondent has not denied those allegations. Thus, the allegations may be deemed admitted. Alcoholics Anonymous World Services, Inc. v. Raymond, ICANN Case No. D2000-0007; Ronson plc v. Unimetal Sanayi ve Tic.A.S., ICANN Case No. D2000-0011. Moreover, Complainant has presented proof in the form of Whois details, which have been confirmed by the Registrar, that the addresses used and the Contacts designated are inter-linking and identical. Adobe Systems Incorporated v. Domain Oz, ICANN Case No. D2000-0057.

Accordingly, the Panel exercises the broad discretion vested in it by Paragraph 4(f) of the Policy to consolidate the claims concerning the various domain names at issue.

The domain names at issue are confusingly similar to complainant’s trademark. They are typographical errors or confused spellings of that mark designed to lead a consumer who misspells or mis-enters complainant's name to a website maintained by Respondent. The posting of the Constitution of the United States of America does not constitute the exercise of free speech. Nowhere does Respondent offer anything in the way of critical comment as to Complainant, its publications, or its policies. Respondent has demonstrated no legitimate rights or interests in the domain names at issue.

The final issue is whether the domain name has been registered and is being used in bad faith. By using misspellings of complainant's well-known marks, respondent seeks to attract Internet users who mis-enter or misspell complainant's name when seeking to find complainant's website on the World Wide Web. When such Internet users arrive at respondent's websites, they are confused as to where they are and why they have not arrived at a website maintained by complainant. In light of past decisions in which Respondent has been forced to turn over websites to Complainant, Respondent's motive appears to be vindictiveness. See, e.g., Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, ICANN Case No. D2000-0578. Moreover, prior decisions have established that "typosquatting" in and of itself constitutes bad faith registration and use.

"There is no conceivable good faith use to which Respondent, who has no right or legitimate interest in the domain name at issue, could put the domain name at issue, which is identical or confusingly similar to the famous [THE WALL STREET JOURNAL] mark. To quote a prior Panel decision, "[B]ecause Respondent is contributing no value-added to the Internet -- it is merely attempting to exploit a general rule of registration -- the broad community of Internet users will be better served by transferring the domain name to a party with a legitimate use for it." Educational Testing Service v. TOEFL, ICANN Case No. D2000-0044. Accordingly, the Panel finds that the practice of "typosquatting" constitutes registration and use in bad faith."

General Electric Company v. Fisher Zvieli, a/k/a Zvieli Fisher, ICANN Case No. D2000-0377. This Panel, likewise, finds that the "typosquatting" engaged in by Respondent here constitutes bad faith registration and use.

The Panel notes that Respondent's objections to jurisdiction and to violations of Constitutional principles and statutes should be determined in another forum. The Panel is satisfied that under the Policy, the Panel has jurisdiction to perform its very limited duties. The Panel has attempted to perform those duties to the best of its abilities. To the extent that the Respondent believes that there are legal impediments to the establishment of the Policy itself, Respondent must raise those issues with authorities having the power to determine such issues and to enforce such determinations.

 

7. Decision

For all of the foregoing reasons, the Panel decides that the domain names registered by Respondent are confusingly similar to the mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domain names at issue, and that Respondent has registered and is using the domain names at issue in bad faith. Accordingly, the Panel requires that the domain names <wallstreetjounral.com>, <wallstreetjouranl.com>, <wallsreetjournal.com>, and <wallsteetjournal.com> be transferred to Complainant Dow Jones & Company, Inc.

 


 

M. Scott Donahey
Presiding Panelist

David Plant
Panelist

James Carmody
Panelist

Dated: May 18, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0302.html

 

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