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Arbitration and Mediation Center
Deloitte Touche Tohmatsu v. CostNet aka Domain Manager
Case No. D2003-0619
1. The Parties
The Complainant is Deloitte Touche Tohmatsu, of Zurich, Switzerland, represented by Fross Zelnick Lehrman & Zissu, PC, of United States of America.
The Respondent is CostNet aka Domain Manager, of San Jose, Costa Rica.
2. The Domain Name and Registrar
The disputed domain name <deloite.com> is registered with Register.com.
3. Procedural History
The Complaint was filed in hard copy form with the WIPO Arbitration and Mediation Center (the "Center") on August 7, 2003. On August 8, 2003, the Center acknowledged receipt of the Complaint and transmitted by email to Register.com a request for registrar verification in connection with the domain name at issue. On that same day, Register.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient for not having been accompanied by an electronic version of the Complaint, the Complainant filed such a version with the Center on August 11, 2003. On August 12, 2003, it was clarified that also the Registrar had received the Complaint on August 7, 2003, and in electronic form. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 13, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was September 2, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 3, 2003.
The Center appointed Gunnar Karnell as the sole panelist in this matter on September 22, 2003. 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 "Swiss Verein", similar to an incorporated membership association. It is one of the world’s leading accounting, auditing, management consulting and tax advisory other professional services organisations. Its national practices employ more than 119,000 persons in over 140 countries.
It is the owner of registered trademarks DELOITTE and of DELOITTE & TOUCHE trademarks in several countries, registered well before the registration of the domain name. The short form identifier DELOITTE is also in frequent world wide use exclusively identifying the Complainant. Its web site "www.deloitte.com" provides consumer information concerning its services.
5. Parties’ Contentions
A. Complainant (arguments in summary)
The domain name in issue in these proceedings is confusingly similar to the Complainant’s mark. That it is misspelled does not distinguish it from the Complainant’s mark.
The Respondent has no rights or legitimate interests in respect of the domain name, having registered the domain name long after the Complainant had established its rights. The Complainant’s marks are so well known and recognised that there can be no legitimate use by the Respondent. There is no relationship of any kind between the Complainant and the Respondent and the latter is not commonly known by the domain name. Furthermore, it is not making legitimate non-commercial or fair use of the domain name. It uses it to divert for its own benefit web traffic to a commercial search engine and linking portal at Linkster.com and to a pornographic web site. The Respondent uses its domain name consisting of a misspelled version of the DELOITTE mark plus ".com" to confuse Internet users and not for any legitimate non-commercial or fair use purpose.
The Respondent has registered and is using the domain name in bad faith to
divert web traffic to Linkster.com, owned and operated by the Respondent, providing
links to sponsored web sites and online services on a variety of topics, such
as gambling, travel, entertainment and financial information, at that deriving
financial benefit from the web traffic that is diverted through the <deloite.com>
domain name to the Linkster.com search engine and linking portal by a revenue
sharing program sponsored by Overture.com. The Respondent also uses the domain
name in issue in bad faith to divert web traffic to a pornographic web site
entitled "All Ebony Teens" which provides graphic photographs of naked
female teen-agers. Sub-pages within the deloite.com domain created by the Respondent
mirror sub-pages within the Complainant’s "deloitte.com" web site,
e. g. <global.deloite.com> for <global.deloitte.com> and
"careers.deloite.com" for "careers.deloitte.com", directing
web users who mistakenly address the domain name with a sub-domain careers.deloite.com
to "All Ebony Teens". By basically the same behaviour as in this case
the Respondent has already been found to have registered and used domain names
in bad faith by many administrative panels (among those Ltd Commodities,
Inc. v. CostNet /Domain Manager, WIPO
Case No. D2002-0031 and Briefing.com Inc v. Cost Net Domain Manager,
WIPO Case No. D2001-0970).
The Respondent currently owns over two hundred domain names, a number of which
are based on third party names and marks, used to direct traffic to the Linkster.com
web site or to other web sites, including pornographic ones. The Respondent
is clearly using the goodwill and fame of the Complainant’s mark in bad faith
in order to improperly benefit financially in violation of applicable trademark
and unfair competition laws. It has registered and uses the domain name <deloite.com>
in intentional attempt to attract, for unlawful financial gain, Internet users
to its web site or in order to harm the Complainant.
The Complainant requests that the domain name <deloite.com> be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The domain name <deloite.com> is confusingly similar to the Complainant’s
mark DELOITTE. This case is an example of what has been called "typosquatting,
where a famous mark is transformed into an alphabetically varied form, causing
confusion by the slight variation in spelling.
B. Rights or Legitimate Interests
The Respondent has not used the opportunity rendered to give indications about any rights or legitimate interests in the domain name. The Panel finds that information provided by the Complainant about the Respondent and its activities conclusively show that there have been no such rights or legitimate interests, nor do they presently exist.
C. Registered and Used in Bad Faith
The Respondent has registered a number of domain names mirroring internationally well known trade marks to which it cannot possibly have acquired any rights. The Panel is convinced that the Respondent, when registering the domain name at issue in these proceedings, was well aware of the Complainant’s trade mark DELOITTE and intentionally misspelled it for the domain name, knowing that the misspelled word would, for uses such as described by the Complainant here above under 5. A., create confusion among visitors to the Respondent’s respective sites and that it would, in particular by the pornographic site, tarnish the reputation of the mark. The registration under such circumstances and the ensuing use of the domain name is evidence of bad faith.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <deloite.com> be transferred to the Complainant.
Dated: September 26, 2003