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Arbitration and Mediation Center
Harmless Junk, Inc. v. (John Zuccarini d/b/a) Party Night Inc., (John Zuccarini d/b/a) Phayze Inc.
Case No. D2003-0967
1. The Parties
The Complainant is Harmless Junk, Inc., Dunwoody, Georgia, United States of America, represented by Alston & Bird, LLP, United States of America.
The Respondents are: Party Night Inc., Amsterdam, Netherlands; and Phayze Inc., Paris, France. The Complainant alleges that the Respondents are "actually d/b/a’s for a single person, John Zuccarini."
2. The Domain Names and Registrars
There are three disputed domain names. The domain names <homestarruner.com> and <homestarunner.com> are registered with Key-Systems GmbH dba domaindiscount24.com; the domain name <homestarsrunner.com> is registered with IDR Internet Domain Registry Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 8, 2003. On December 8, 2003, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com and IDR Internet Domain Registry Ltd., a request for registrar verification in connection with the domain names at issue. On December 10, 2003, Key-Systems GmbH dba domaindiscount24.com transmitted by email to the Center its verification response confirming that the Respondent Party Night Inc. is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. On December 17, 2003, IDR Internet Domain Registry Ltd., transmitted by email to the Center its verification response confirming that the Respondent Phayze Inc. 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, the Complainant filed an amendment to the Complaint by email on January 8, 2004, with the hard copy received on January 13, 2004. The Center verified that the Complaint, together with the amendment to 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 Respondents of the Complaint, and the proceedings commenced on January 14, 2004. In accordance with the Rules, paragraph 5(a), the due date for response was February 3, 2004. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on February 6, 2004.
The Center appointed Ilhyung Lee as the sole panelist in this matter on February 10, 2004. 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 Respondents did not submit a response to the Complaint. Paragraphs 5(e) and 14(a) of the Rules allow the Panel to decide the dispute based on the Complaint. The Respondents’ default requires the Panel to draw appropriate inferences from such default, as provided in paragraph 14(b) of the Rules. The Panel accepts as true those assertions in the Complaint necessary to the resolution of the dispute.
The Complainant, Harmless Junk, Inc., a Georgia corporation, is the creator and owner of an original series of animated cartoons broadcast on the Internet under the mark, HOMESTAR RUNNER. The Complainant registered the domain name <homestarrunner.com>, on December 21, 1999, and launched the website in January 2000. Also in 2000, the Complainant began offering for sale a variety of HOMESTAR RUNNER merchandise, which now includes t-shirts, hats, posters, games, and others. On January 10, 2003, the Complainant filed in the United States Patent and Trademark Office an application for registration of HOMESTAR RUNNER as a service mark and trademark. The application is based on use, under Section 1(a) of the Lanham Act, 15 U.S.C. § 1051(a), with the "first use date" and "first use in commerce date" of January 1, 2000. The application for registration is pending.
The Respondent Party Night Inc., whose address of record is in Amsterdam, Netherlands, registered the domain name <homestarruner.com> on April 13, 2002, and the domain name <homestarunner.com> on May 24, 2002.
The Respondent Phayze Inc., whose address of record is in Paris, France, registered the domain name <homestarsrunner.com> on January 24, 2003.
Until recently, Internet users who typed in any of the disputed domain names were re-directed to for-profit "adults only" websites. Users who attempted to exit from these sites were "‘mousetrapped’ in a seemingly endless string of additional pop-up windows, many of which also promote for-profit adult content websites."
5. Parties’ Contentions
The Complainant argues that: the Respondents’ domain names are identical or confusingly similar with the HOMESTAR RUNNER mark in which the Complainant owns rights; the Respondents have no rights or legitimate interests in the domain names; and the Respondents have registered and used the domain names in bad faith.
The Respondents did not respond to the Complainant’s contentions.
6. Discussion and Findings
The Complainant requests that it be permitted to address all three of the disputed
domain names in a single proceeding. Paragraph 3(c) of the Rules provides that
a complaint may relate to multiple domain names only if they are registered
by the same holder. The Complainant asserts that Party Night Inc. and Phayze
Inc. "are aliases for the same person, John Zuccarini." With the Respondents’
default, this statement is unrebutted. The Panel will thus allow the claims
against Party Night Inc. and Phayze Inc. relating to multiple domain names to
be brought in a single complaint, as did the panel in Washington Mutual,
Inc., v. Phayze Inc., Peter Carrington and Party Night, Inc., WIPO
Case No. D2003-0283 (July 3, 2003).
Paragraph 4(a) of the Policy provides that in order to prevail in this proceeding, the Complainant here must prove each of the following three elements:
(i) the domain names in dispute are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondents have no rights or legitimate interests in respect of the domain names; and
(iii) the domain names were registered and used in bad faith.
A. Identical or Confusingly Similar
The Complainant states that it "owns valid and enforceable common law service mark and trademark rights in its HOMESTAR RUNNER mark," as a result of continuous and exclusive use of the mark on its cartoons, website, and merchandise beginning from January 2000. The Complainant’s use of the mark, as well as its registration in December 1999, of the <homestarrunner.com> domain name, predates the Respondents’ registration of the disputed domain names. The Panel accepts the Complainant’s assertion that it has rights in the HOMESTAR RUNNER mark.
The Panel also finds that the disputed domain names are confusingly similar to the Complainant’s mark. As the Complainant notes, each of the disputed domain names is composed by merely deleting a single letter from, or adding a single letter to, the Complainant’s mark, and each domain name "is nearly identical visually and phonetically" to the Complainant’s mark. Indeed, a close examination is necessary to confirm differences between the Complainant’s mark and each of the disputed domain names. The Complainant has proved the first element.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that the Respondents may demonstrate their rights or legitimate interests in the domain names by: the Respondents’ use of the domain names in connection with a bona fide offering of goods or services; or the Respondents being commonly known by the domain names; or the Respondents making a legitimate noncommercial or fair use of the domain names. The circumstances identified in paragraph 4(c) to support such rights or interests are not exhaustive. Nevertheless, there is nothing in the case record to indicate that the Respondents have rights or legitimate interests in their use of the domain names.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides for illustrative circumstances that are evidence of bad faith in the registration and use of a domain name. The Respondents’ use of the domain names here indicates that the Respondents have "intentionally attempted to attract, for commercial gain, Internet users to [the Respondents’] website[s] . . ., by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement" of the Respondents’ websites or of products on the websites, as described in the Policy, paragraph 4(b)(iv).
In addition, the Complainant asserts that the Respondents’ practice of "typosquatting"
is also evidence of bad faith. "Typosquatting . . . is the intentional
misspelling of words with intent to intercept and siphon off traffic from its
intended destination, by preying on Internauts who make common typing errors."
National Association of Professional Baseball Leagues, Inc., d/b/a Minor
League Baseball v. John Zuccarini, WIPO
Case No. D2002-1011 (January 21, 2003). The three-member panel
in the National Association of Professional Baseball Leagues decision
declared that "[t]yposquatting is inherently parasitic and of itself evidence
of bad faith." Id. (That decision
also cites to numerous WIPO decisions in which Mr. Zuccarini was found to have
violated provisions of the Policy.)
Bad faith in the registration and use of the domain names is present here.
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 names <homestarruner.com>, <homestarunner.com>, and <homestarsrunner.com> be transferred to the Complainant.
Date: February 23, 2004