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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Altavista Company v. Brunosousa, aka Bruno Sousa
Case No. D2002-0109
1. The Parties
The Complainant in this proceeding is AltaVista Company, a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business in Palo Alto, California, United States of America.
The Respondent in this proceeding is BrunoSousa, aka Bruno Sousa, who resides in Lisbon, Portugal.
2. The Domain Name and Registrar
This dispute concerns the domain name <altavistasoftware.com> (the "Domain Name")
The Domain Name was registered on November 3, 1999.
The Registrar with whom the Domain Name is registered is:
Register.com Inc., 575 Eighth Avenue, New York, United States of America.
3. Procedural History
A Complaint pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") and the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") both of which are implemented by ICANN on October 24, 1999, was received by WIPO in electronic format on January 31, 2002, and in hardcopy on February 5, 2002. Payment in the required amount to the Center has been made by the Complainant.
On February 5, 2002, a request for registrar verification was sent to the Registrar requesting confirmation that it had received a copy of the Complaint from the Complainant, that the Domain Name was currently registered with it and that the Policy was in effect, and requesting full details of the holder of the Domain Name and advice as to the current status of the Domain Name.
On February 7, 2002, a Notification of Complaint was sent to the Respondent, with a copy to the Complainant.
On March 6, 2002, having received no Response, the Center issued a Notification of Respondent Default
On March 25, 2002, a notification of appointment of administrative panel and projected decision date ("the appointment notification") was sent to the Complainant and the Respondent. In accordance with the Complainant’s request, the appointment notification informed the parties that the administrative panel would be comprised of a single Panelist, Clive Elliott.
4. Factual Background
The Complainant is an Internet search company that provides Internet search services and sells Internet and document search software through its website "www.altavista.com."
The Complainant says that it has invested extensive resources to publicize the mark ALTAVISTA and has widely dispersed the ALTAVISTA mark in a manner designed to ensure its automatic identification in the minds of consumers with the Complainant’s software and services.
The Complainant owns United States trademark registrations for the mark ALTAVISTA with registration numbers 2181100 and 2047808. These registered trademarks cover a wide variety of computer, Internet, printed matter, and educational goods and services, including research software. The Complainant also owns a European Community Trademark registration for the mark ALTAVISTA (with registration number 258954), effective in Portugal, covering the same products and services. Copies of the Complainant’s trademark registrations have been provided.
The Complainant claims the only difference between the two names is the addition of the word "software" by the Respondent after the Complainant’s mark.
The Complainant states that currently the "www.altavistasoftware.com" URL "redirects" Internet users to Complainant’s web site.
The Respondent registered and uses the Domain Name <altavistasoftware.com> and redirects users to the Complainant’s own web site, "www.altavista.com".
The Complainant says that it has repeatedly asked the Respondent to cease and desist from using the Domain Name in this way. The Respondent has not responded to the Complainant’s letters or phone messages or complied with the Complainant’s request.
The Complainant states that the Respondent is not a licensee of the Complainant, nor is he otherwise authorised to use the Complainant’s mark. The Complainant also states that the Respondent has not used the Domain Name for any business purpose since his registration of the Domain Name in November 1999.
The Complainant alleges that it is possible to infer from a registrant’s failure to use a given domain name that the Domain Name was registered without a bona fide intent to make any good faith use. The Complainant also alleges that the Respondent’s registration and use of the Complainant’s well-known mark and redirection of visitors to <altavistasoftware.com> to Complainant’s web site is deceptive and clearly intended to build a mistaken link in the mind of those who type "altavistasoftware" into their web browsers between the URL "www.altavistasoftware.com" and the Complainant’s URL. It is contended that this will allow the Respondent to divert future users to competing web sites after having built up mistaken confidence in the source of the content at "www.altavistasoftware.com" on the part of consumers.
No Response was received from the Respondent.
6.Discussion and Findings
Para. 4(a) of the Policy requires that the Complainant must prove each of the following:
·The Domain Name is identical or confusingly similar to the trade mark in which Complainant has rights; and
·The Respondent has no right or legitimate interest in respect of the Domain Name; and
·The Domain Name has been registered and is being used in bad faith.
Para. 4(b) of the Policy sets out four illustrative circumstances that, if proved, constitute evidence of bad faith as required by para. 4(a)(iii) referred to above.
Para. 4(c) of the Policy sets out three illustrative circumstances that, if proved, constitute evidence of a right or legitimate interest as described in para. 4(a)(ii) referred to above.
Domains Names Identical or Confusingly Similar
The Complainant alleges, with some basis, that it is an Internet search company that provides Internet search services and sells Internet and document search software through its website "www.altavista.com". The Complainant also alleges that it has invested extensive resources to publicise the mark ALTAVISTA and has widely dispersed the ALTAVISTA mark. It has clearly succeeded in establishing the mark in the minds of consumers and particularly with the Complainant’s software and services.
Given the widespread recognition of the ALTAVISTA trademark and its association with the Internet and software and related services, the addition of the word "software" to ALTAVISTA does little to break the obvious connection between the Domain Name and the Complainant company.
In the Panel’s view the addition of a descriptive term to a famous trademark does little to alter the inherent trademark nature of the term ALTAVISTA. Accordingly, it is found that ALTAVISTA, a word in which the Complainant has clear trademark rights, is not identical to but extremely similar to the Domain Name. By the same token it is found that <altavistasoftware.com> is confusingly similar to ALTAVISTA, particularly given the Complainant’s close association with the Internet generally and software and browsing services specifically.
Accordingly, the first ground is made out.
No Right or Legitimate Interest
In the absence of any denial, it is hard to find any legitimate basis for registering and using the Domain Name, as the Respondent has. The Complainant contends that redirection of visitors from <altavistasoftware.com> to the Complainant’s web site is deceptive and clearly intended to build a mistaken link in the mind of those who type "altavistasoftware" into their web browsers between the URL "www.altavistasoftware.com" and the Complainant’s URL. This redirection seems to be a seamless one and it is hard to see how the Respondent presently benefits from the situation. It is contended by the Complainant that such redirection will allow the Respondent to divert future users to competing web sites after having built up mistaken confidence in the source of the content at "www.altavistasoftware.com" on the part of consumers.
There is some merit in this contention. In the absence of explanation in this case, it is found that an unconnected party has no right or legitimate interest to use an otherwise deceptive trademark, name or indicia to redirect Internet traffic, even if it is directed to the legitimate owner of the trademark, name or indicia and provider of the services. Generally, such an owner of rights should be able to control how such trademarks, names and indicia are used in the course of trade and when so used to control who is directed to its website and by whom.
In so finding, notice is taken by the Panel of the prominent position the Complainant holds in the Internet world and the huge profile its marks and domain names have in the worldwide Internet community.
Accordingly, this ground is made out.
Registration and Use in Bad Faith
The Domain Name was registered on November 3, 1999, after the Complainant or its predecessors in business had acquired an identifiable reputation in the ALTAVISTA trademark and name. This renders the registration in bad faith, absent some explanation or attempt to justify the action.
As noted above, the Domain Name is now being used to attract hits, even though rather unusually users are immediately redirected to the Complainant’s own web site. It is hard to see what purpose the registration and use of the Domain Name might have other than to function as an instrument of commerce. That is, to attract hits and presumably ultimately business, as a result. The suggestion that such redirection will allow the Respondent to divert future users to competing web sites after having built up mistaken confidence in the source of the content is a reasonable one. Absent any other explanation, the Panel is prepared to infer it is a likely objective, even if not necessarily the only one.
The Respondent may have wished to argue that its registration and use was not in bad faith. However, having chosen not to avail itself of its right to do so, the Panel has to base its finding on the evidence and submissions as they stand.
For the reasons given above, the Panel feels that the Complainant has established this ground and also satisfied the three requirements under the Policy para 4(a).
Therefore, and in consideration to the Complaint’s compliance with the formal requirements for this proceeding, to the factual evidence and legal contentions that were submitted, to the confirmation of the presence of each of the elements contemplated in Paragraph 4(a)(i), (ii), and (iii) of the Policy, and on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and other applicable rules and principles of law, as directed by paragraphs 14(a) and (b) and 15(a) of the Rules, it is found:
(1)that the Domain Name is confusingly similar to the Complainant’s ALTAVISTA trademark and name;
(2)that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(3)that the Domain Name has been registered and is being used in bad faith by the Respondent.
Therefore, the Panel requires, pursuant to what is provided for under Paragraphs 3(c) and 4(i) of the Policy, that the Domain Name be transferred to the Complainant.
Clive L. Elliott
Dated: April 3, 2002