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and Mediation Center
Zinsser Co. Inc., Zinsser Brands, Co. v. Henry Tsung
Case No. D2006-0413
1. The Parties
The Complainants are Zinsser Co. Inc. and Zinsser Brands, Co, Medina, Ohio, United States of America, represented by Calfee, Halter & Griswold, United States of America.
The Respondent is Henry Tsung, Taipei, Province of China.
2. The Domain Name and Registrar
The disputed domain name <zinnser.com> is registered with DSTR Acquisition
VII, LLC d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2006. On April 3, 2006, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a Dotregistrar.com a request for registrar verification in connection with the domain name(s) at issue. On April 18, 2006, DSTR Acquisition VII, LLC d/b/a DotRegistrar.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. 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 April 20, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11, 2006.
The Center appointed Ian Lowe as the sole panelist
in this matter on May 19, 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,
4. Factual Background
The Complainant Zinsser Co. Inc. (“Zinsser”) is the manufacturer of a wide range of paint and decorating products. One of its predecessor companies, William Zinsser and Co. Inc was established in 1849. Zinsser has used the mark ZINSSER since it was incorporated in 1975.
The Complainant Zinsser Brands, Co. is an associate company of Zinsser and is an intellectual property holding company. Zinsser Brands is the registered proprietor of US trade mark number 1,804,012 ZINSSER stylized mark. Zinsser or Zinsser Brands is also the registered proprietor of the word mark ZINSSER in Australia and New Zealand and the applicant for other US trade marks incorporating the word Zinsser. In addition, they have pending applications for ZINSSER and Design marks in the European Community and the Republic of Korea.
Zinsser maintains an Internet website at “www.zinsser.com”.
The disputed domain name <zinnser.com> (“Domain
Name”) was registered on December 23, 2003. As at May 29, 2006, the Domain
Name resolved to a domain-parking page that incorporates links to a number of
websites selling Zinsser’s goods.
5. Parties’ Contentions
A summary of the Complainants’ contentions is as follows:
Zinsser has extensive and long-standing rights in the ZINSSER trade name and mark since Zinsser and its predecessors have been using the mark since 1849. The Complainants are also the proprietors of a number of ZINSSER trade marks in the US and elsewhere and have a number of pending applications to register the Zinsser name.
The Domain Name is identical or confusingly similar to the Complainants’ marks because the only difference is the change of one letter from “s” to “n”. Zinsser and Zinnser sound identical and as a result “Zinnser” is a common misspelling of the Complainants’ ZINSSER mark. Many consumers who attempt to access the Complainants’ website are prone to make this mistake.
The website to which the Domain Name resolves includes several links to websites that sell Zinsser’s goods, which are sold in connection with the ZINSSER mark. It is clear from the content displayed on the website that the Respondent intended to benefit from the confusing similarity between the Domain Name and the Complainants’ ZINSSER mark.
The Respondent has no legitimate interest in respect of the Domain Name and has no authority, whether actual or apparent, and no consent or license to use the ZINSSER mark or trade name.
The Respondent has not used or made any demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods and services. There is no evidence that the Respondent has been commonly known by the Domain Name or any variation of the word “Zinsser”.
Based on a review of the records of the US Patent and Trade Mark Office, there are no US trade mark registrations or applications made up of, or incorporating, the term “Zinsser” other than those owned by the Complainants. There are also no US trade mark registrations or applications made up of, or incorporating, the term “Zinsser”. To the Complainants’ knowledge, no party is currently using the term “Zinsser” as part of a trade mark or trade name in the US or abroad.
The Respondent is typo-squatting. He is relying on typographical errors made by Internet users when inputting website addresses to attract Internet traffic to his website. The website to which the Domain Name resolves is a domain parking page carrying sponsored links and other Zinsser-related links that generate additional sets of sponsored links. All of these links use the correct spelling of the Complainants’ ZINSSER mark and not the misspelling “Zinnser”. The Respondent’s website also shows other marks owned by the Complainants, such as BULLS EYE, GUARDZ and B-I-N. Each time the Respondent lures an Internet user to his website who then clicks on one of the sponsored links the Respondent profits from the payment received from the sponsors of the links. This all indicates that the Respondent is well aware of the ZINSSER mark and intends to take advantage of it by attracting, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the ZINSSER mark as to the source, sponsorship, affiliation or endorsement of the website to which the Domain Name resolves. This use amounts to bad faith under paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainants’
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainants have adduced evidence of a US trade mark registration in respect of the mark ZINSSER and Design covering a range of goods including floor finishing preparations, paint removing preparations, primer and sealer coatings with a date of first use of September 1985. The registered mark comprises the prominent stylized word ZINSSER and a bull’s eye design. The Complainants have also adduced evidence of further trade mark registrations in New Zealand and Australia in respect of the word mark ZINSSER and of further pending applications in the US, in Australia, Korea and the European Community. The Panel finds that the Complainants have clearly established rights in the trade mark ZINSSER.
The Domain Name differs from the Complainants’ mark by one letter. “Zinnser” sounds identical to “Zinsser” and may readily be seen as a common misspelling for ZINSSER. Accordingly, the Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainants have rights.
B. Rights or Legitimate Interests
The Respondent has not replied to the Complainants’ contentions and has not therefore displaced the assertion on the part of the Complainant that the Respondent does not and cannot possibly have any rights or legitimate interests in the Domain Name. The Complainants have adduced some evidence that “Zinnser” is not used as a trade name in the US or elsewhere. Furthermore, the Complainants have adduced evidence that its mark, ZINSSER, is not used by any third party. The Panel accepts that the Respondent must have had the Complainants’ mark in mind when registering the Domain Name. Based on the case file, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
At all material times the Domain Name has resolved to a website on which appears a number of links both to third parties selling Zinsser’s products and to lists of further links in turn relating to such products. The website to which the Domain Name resolves appears to be a domain parking page so that, in the usual way, the Respondent earns commission whenever an Internet user visits his website and clicks on a sponsored link.
The Respondent has not countered the evidence that the Respondent is unduly deriving a financial benefit from web traffic diverted through the Domain Name to the Respondent’s domain parking page and the sponsored links. The Panel therefore accepts that the Respondent has intentionally attracted Internet users to his website for commercial gain through confusion as to the source, affiliation or endorsement of the website.
In the absence of any response from the Respondent, the Panel finds that it is overwhelmingly likely that the Respondent had the Complainants’ mark in mind when it registered the Domain Name and that it did so with a view to taking advantage of the common misspelling of the Complainants’ mark to attract Internet users to his website. In view of the Complainants’ uncontroverted evidence as to the unusual nature of both the Complainants’ mark ZINSSER and the Domain Name, the Panel finds that the Respondent can have had no legitimate or good faith reason for registering the Domain Name.
Accordingly, the Panel finds that the Respondent has registered and used the
Domain Name in 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 <zinnser.com> be transferred to the Complainant Zinsser Co., Inc.
Dated: June 2, 2006