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and Mediation Center
Pancil, LLC v. Jucco Holdings
Case No. D2006-0676
1. The Parties
The Complainant is Pancil, LLC, La Jolla, California, United States of America, represented by Melkonian & Company, Australia.
The Respondent is Jucco Holdings, Los Angeles, California, United States of
2. The Domain Name and Registrar
The disputed domain name <strfall.com> is registered with NameKing.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2006. On May 31, 2006, the Center transmitted by email to NameKing.com a request for registrar verification in connection with the domain name(s) at issue. On June 2, 2006, NameKing.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 June 13, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 3, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 4, 2006.
The Center appointed Adam Samuel as the sole panelist
in this matter on July 13, 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 does business under the names of “Starfall Website” and “Starfall, LLC”.
The Complainant owns trademark registrations for the mark STARFALL in the United States of America, the European Union (CTM), Argentina, Australia, Canada, Chile, Colombia, Hong Kong, Japan, Mexico, New Zealand, Peru, Puerto Rico, Republic of Korea, Russian Federation, Singapore, Switzerland, Taiwan, and Venzuela in ninety seven (97) separate registrations including multi-class registrations and is the subject of numerous pending registrations throughout the world. US Trademark 2,771,770 is for: Books, Blank writing journals and worksheets for children; pencils; Instructional and teaching material, namely, manuals and handbooks for educators in International Class 16.
The instructional and teaching material is delivered online to students and
educators at no charge via the website “www.starfall.com”. Over
20,000,000 copies of the printed books have been distributed. The Starfall instructional
materials are used by millions of preschool and primary school students and
by thousands of schools throughout the world.
5. Parties’ Contentions
The Complaint owns trademark registrations for the mark STARFALL. The domain name in issue is confusingly similar to that name, missing only a single letter. Starfall itself is a fanciful name that is not descriptive of anything. What makes the likelihood of confusion most clear is that “starfall” is a website designed for and frequented by young children who are learning to read and write. Consequently the likelihood of spelling errors is magnified.
The Respondent has not demonstrated any legitimate interests with respect to the domain name that is the subject of the complaint. Access to respondent’s website shows that it is nothing but an attempt to sell competing literacy products and services. The offending website has nothing whatsoever to do with the word “strfall”. The respondent is merely using a misspelling of complainant’s trademark as a means of selling competing products and services.
To the best of Complainant’s knowledge, Respondent has never been known as “strfall” and none of Complainant’s many trademark searches or applications have revealed any such entity. To the best of Complainant’s knowledge, Respondent did not make use of the objected-to domain name until after the term “Starfall” had become well-known and well-established with a distinct secondary meaning.
By using the domain name in issue, the Respondent has intentionally attempted to attract for commercial gain Internet users to the Respondent’s websites by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. The Respondent stands to gain financially through linking to competing service providers and advertising competing products and services. Furthermore because of the diversion of the Complainant’s patrons to the offending website, the Complainant is likely to lose patrons.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which it has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant owns rights in the trademark STARFALL. The omission of the letter “a” in the domain name in issue appears to be a classic example of “typo-squatting”, where a domain name attracts Internet users who make a small typing error.
In Sierra HealthStyles LLC v. Modern Limited -
Cayman Web Development, WIPO Case No. D2006-0020,
the Panel said on this subject:
“Here, the domain name has two differences from Registration No. 2152729 and the key element of the other two registrations: the addition of the .com suffix and the substitution of “i” for the first “a” in the trademark.
The substitution of the “i” for the first
“a” is visually apparent on close inspection. The domain name and
the trademark, MIRAVAL, however, are phonetically similar. There are various
ways that both versions of the word may be pronounced and some of these will
or may sound the same or similar. The word element of the domain name created
by the substitution of the “i” for the “a” is not a
plain English word or otherwise generic. There are likely to be circumstances
where a person might unintentionally type in the domain name instead of the
trademark term, particularly having regard to imperfect recollection and the
potential for persons using the Internet to “guess” at domain names.
In these circumstances a finding of confusing similarity in line with the “typosquatting”
cases is appropriate. See e.g. AltaVista Company v. Saeid Yomtobian,
WIPO Case No. D2000-0937; America Online,
Inc. v. Johuathan Investments, Inc. and AOLLNEWS.COM, WIPO
Case No. D2001-0918; and Wachovia Corporation v. Peter Carrington,
WIPO Case No. D2002-0775.
Consequently, the Panel finds that the disputed domain name is at least confusingly similar to the Complainant’s registered trademark rights.”
For these reasons, the Panel concludes here that the domain name is confusingly similar to the Complainant’s registered trademark.
B. Rights or Legitimate Interests
The Respondent is not called “Strfall” and does not appear to trade under that name. There is no evidence that the owner of the trademark in question, the Complainant, has authorized the Respondent to use the trademark. The Respondent has never asserted any rights or legitimate interests in the name. For these reasons, on the basis of the evidence in case file, and in view of the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
Currently, the disputed domain name resolves to a website that offers links to a variety of further websites through which users can purchase a wide variety of products and services.
The Complaint indicates that the disputed domain name used to resolve to a website marketing products competing with the Complainant’s products. Since the Respondent has not replied to the Complaint, one has to assume that this was correct when the Complaint was filed.
In practice, it makes no difference anyway. The name,”Strfall” has no independent existence or meaning except as a misspelling of the Complainant’s trademark. This was registered well before the domain name in issue was acquired. It is impossible, at least without a Response to the Complaint, to identify a reason why the Respondent registered the domain name in issue other than to attract business or Internet users to its site who were looking for a site connected to the Complainant’s trademark or business.
According to the Complaint, the Respondent was seeking to market competing products to those of the Complainant through the domain name in issue. At present, the Respondent appears to be seeking to exploit the domain name and by extension the Complainant’s trademark to earn money through click-throughs to other sites marketing various products and services.
The only explanation of what has happened is that the Respondent’s motive in registering and using the sites seems to be, as the Complainant says, simply to disrupt the Complainant’s relationship with its customers or potential customers or attempt to attract Internet users for potential gain. These both constitute evidence of registration and use in bad faith: paragraph 4(b)(iii) & (iv) of the Policy.
This conclusion is supported by the view expressed
in Go Daddy Software, Inc. v. Daniel Hadani, WIPO
Case No. D2002-0568:
“Typosquatting is virtually per se registration and use in bad faith. It is difficult to conceive of circumstances that would overcome the inference that the typosquatter “intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s website by creating a likelihood of confusion with the complainant’s mark as to the source” of the website. Here such conduct was undertaken to send Complainant’s customers to a site that promoted directly competing services.”
For all these reasons, the Panel concludes that the
domain name was registered and is being used 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, <strfall.com> be transferred to the Complainant.
Dated: August 4, 2006