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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Network Solutions, LLC v. XCsquare

Case No. D2005-1244

 

1. The Parties

Complainant is Network Solutions, LLC, Herndon, Virginia, United States of America, represented by Ballard Spahr Andrews & Ingersoll, LLP, United States of America.

Respondent is XCsquare, Hong Kong, NA, SAR of China.

 

2. The Domain Names and Registrar

The disputed domain names <networkdolutions.com> and <networksolutipns.com> (hereinafter, each a “Disputed Domain Name” and collectively, “Disputed Domain Names”) are registered with OnlineNic, Inc. d/b/a China-Channel.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2005. On December 2, 2005, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the Disputed Domain Names. On December 5, 2005, OnlineNic, Inc. d/b/a China-Channel.com transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 Respondent of the Complaint, and the proceedings commenced on December 12, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 1, 2006. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 3, 2006.

The Center appointed Mark Min-Jen Yang as the Sole Panelist in this matter on January 23, 2006. 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

Complainant has two US federal trademark registrations for the trademark NETWORK SOLUTIONS (hereinafter, “Trademark”):

(a) No. 2,468,676, registered in 2001, in association with the services of: (i) “Commercial information and directory services featuring directories for locating the computer network addresses and demographic information of entities; providing a directory of organizations, individuals, address, and resources accessible through the use of a global computer network; and computer network address management services, namely, providing services enabling entities to access, add, modify or delete information relating to their computer network addresses”; and (ii) “computer services, namely, providing search engines for obtaining data on a global computer network, registering and tracking addresses on a global computer networks”; and

(b) No. 1,330,193, registered in 1985, in association with the services of “designing and programming computer controlled communications systems”.

Complainant has pending US trademark applications for its Trademark (as particularized in paragraph 13 of the Complaint). Complainant has applications and/or registrations for the Trademark in countries worldwide (Australia, Brazil, Canada, China, European Community, India, Japan, South Korea, Mexico, Taiwan and Uruguay, as more particularized in paragraph 16 of the Complaint).

The previous and original registrant of the Disputed Domain Names, Jeonggon Seo, registered them with the Registrar on September 9, 2002. Sometime in early 2005, Respondent became listed as Registrant of the Disputed Domain Names. On August 31, 2005, Respondent, as Registrant, renewed the registrations of the Disputed Domain Names.

 

5. Parties’ Contentions

A. Complainant

Complainant contends (A) that each of the Disputed Domain Names is identical or confusingly similar to the Trademark and that it has substantial rights therein, (B) that Respondent has no rights or legitimate interests in each of the Disputed Domain Names, and (C) that each of the Disputed Domain Names was registered and is being used in bad faith.

B. Respondent

Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

One requirement of fundamental due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, this Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center.

In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that a “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate”. Since Respondent has not submitted any evidence, the Panel must render its decision on the basis of the uncontroverted evidence supplied by Complainant.

In accordance with paragraph 4(a) of the Policy, to succeed in this UDRP proceeding, Complainant must prove, in respect of each of the Disputed Domain Names (A) that it is identical or confusingly similar to the Trademark in which Complainant has rights, (B) that Respondent has no rights or legitimate interests in respect of it, and (C) that it was registered and is being used in bad faith. Before these requirements are considered below, the Panel makes the following factual findings.

First, Complainant contends that it was the first and continues to be a leading registrar of domain names in the Internet world, well recognized by its Trademark, and it continues to promote its services with its Trademark through millions of dollars per year of promotional and advertising activities. The Panel accepts Complainant’s contention that it has an imminent position in the Internet world, recognized by its Trademark, especially for domain name registrations.

Secondly, Complainant contends that the Disputed Domain Names resolve to Respondent’s websites, which are generic homepages that offer links to various services, including links (such as “Domain Registration” and “Registrar”) to the type of services offered by the Complainant, including domain name registering services. The links also lead consumers to the Complainant’s competitors, including “Go Daddy”, “Yahoo” and “Register.com”. The Panel accepts Complainant’s contentions about the Respondent’s websites.

A. Identical or Confusingly Similar

Complainant contends that the Disputed Domain Names are confusingly similar to its Trademark to which it has rights. The Complainant contends that the Disputed Domain Name <networksolutipns.com> differs from the Trademark only by the substitution of “P” for the last “O” thereof, and that the Disputed Domain Name <networkdolutions.com> differs from the Trademark only by the substitution of “D” for the first “S” thereof, and that such differences are insufficient to overcome a finding of confusing similarity, especially considering, as Complainant noted, that, on the standard keyboard, “P” is adjacent to “O”, and “D” is adjacent to “S”. The generic top level domain of “.com” cannot serve to distinguish.

The Panel accepts Complainant’s contentions and concludes that the first requirement of the Policy is met.

B. Rights or Legitimate Interests

Complainant contends the following: that it has not authorized Respondent to use the Trademark in any way, shape or form, much less as part of a Disputed Domain Name; that the Disputed Domain Names do not reflect any of Respondent’s business names; that Respondent does not own any trademarks that are identical or similar to the Disputed Domain Names; that Respondent is not making a legitimate non-commercial or fair use of the Disputed Domain Names and that its use of the Disputed Domain Names is with the intent for commercial gain and to misleadingly divert consumers or to tarnish Complainant’s Trademark.

By virtue of the legal status of the Trademark as registered trademarks of Complainant in the United States of America and elsewhere and of Complainant’s uncontroverted contentions about its substantial efforts in promoting its services with the Trademark and the substantial size and success of its domain name registration services in the United States of America and worldwide, and Complainant’s contention that there is no business relationship with Respondent, Complainant contends for the conclusion that Respondent has no rights or legitimate interests in the Disputed Domain Names. The Panel, especially in the absence of Respondent’s response (whether argument or evidence to the contrary), considers that the circumstances described in paragraph 4(c) of the Policy, for proof of legitimate interest by Respondent in the Disputed Domain Names, likely do not exist.

The Panel concludes that the second requirement of the Policy is met.

C. Registered and Used in Bad Faith

Complainant contends that the Disputed Domain Names were registered and are used in bad faith.

Complainant contends that Respondent is engaged in a practice commonly referred to as “typosquatting”. Typosquatting involves the registration of common misspellings of famous marks and the diversion, for commercial gain, of Internet users who misspell famous marks. Typosquatting is inherently parasitic and of itself evidence of bad faith, and has been commonly recognized as evidence of bad faith with regard to paragraph 4(a)(iii) of the Policy. See National Association of Professional Baseball Leagues, Inc. v. Zuccarini, Case No. D2002-1011.

Complainant contends (when considering paragraph 4(b) of the Policy) that the only conclusion to be drawn from the evidence submitted in the Complaint (and that evidence is uncontroverted) is that Respondent has (a) intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites by creating a likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship, affiliation, or endorsement of its website or (b) Respondent has registered the Disputed Domain Names primarily for the purpose of disrupting the business of the Complainant.

The Panel accepts Complainant’s contentions on the use of the Disputed Domain Names in bad faith, having regard to the Respondent’s websites that the Disputed Domain Names resolve to.

The Panel does not find the Complaint to be completely clear in its contentions of registration in bad faith. The Complaint in places appears to conflate the registration activities of the original registrant in 2002 (see “Jeonggon Seo” in Factual Background, above) and any alleged registration activities of Respondent (perhaps beginning in early 2005).1 But the Panel infers from the Complaint that it contends that, regardless of any contentions or not about bad faith registration in 2002, Respondent’s renewal in 2005 of the Disputed Domain Names constitutes a “registration” in bad faith. The Panel is aware of decisions like PAA Laboratories Gmbh v. Printing Arts America WIPO Case No. D2004-0338 (July 13, 2004) and the discussion about renewals and registrations in bad faith. In contrast to such decisions, the Complainant herein does adduce evidence that suggests the “typosquatting” type of “bad faith” registration by the original registrant, and so there is no contention that the original registration of the Disputed Domain Names was in good faith. Although the Complaint was not completely clear in its contentions of registration in bad faith, the Panel is satisfied that sufficient evidence and argument was provided by the Complainant on that issue.

The Panel concludes that the third requirement of the Policy is met.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Names, <networkdolutions.com> and <networksolutipns.com> be transferred to Complainant.


Mark Min-Jen Yang
Sole Panelist

Dated: February 6, 2006


1 Perhaps related to the lack of clarity, is the following.

Paragraph 28 of the Complaint recites Complainant’s demand letter of Feb 2004 to Seo and identifies a copy of that letter as Exhibit I.

Paragraph 29 of the Complaint recites Complainant’s follow-up letter of May 3, 2004, to Seo and identifies a copy of that letter as Exhibit J.

Paragraph 30 of the Complaint recites Seo’s reply of May 4, 2004, and identifies a copy of that as Exhibit K. The Panel found Exhibit K to be a copy of such reply. But the “Index of Attached Evidence” identifies Exhibit K is the “Complainant’s Follow-up Letter”.

Paragraph 32 of the Complaint recites Complainant’s demand letter of April 4, 2005, to “Registrant” (which presumably refers to Respondent), and identifies a copy of that letter as Exhibit I. Unfortunately, the Panel found Exhibit I to be as identified in paragraph 28 and not a demand letter of April 4, 2005. The Panel was unable to find in any of the Exhibits, any letter resembling a April 2005 demand letter. The Panel wonders if there was a preparation/drafting lapse in the Exhibits and/or confusion about “Seo”, “Registrant” and “Respondent” in the associated paragraphs of the Complaint as the narrative chronologically proceeded from Seo to Respondent.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1244.html

 

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