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and Mediation Center
Edmunds.com, Inc. v. Cosmos 1 / NA
Case No. D2006-0758
1. The Parties
The Complainant is Edmunds.com, Inc., United States of America, represented by Hitchcock Evert LLP, United States of America.
The Respondent is Cosmos 1 / NA, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <edmends.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2006. On June 19, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On June 19 and 21, 2006, eNom 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 20, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 10, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2006.
The Center appointed Adam Taylor as the sole panelist
in this matter on July 11, 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 has been a leader in the US automotive information industry since it first published its Edmunds car buying guides in 1966.
The Complainant launched its website at “www.edmunds.com” in 1995. This is now the premier online resource for automotive information and the main focus of the Complainant’s business. It currently serves over 127 million pages per month to over 12.3 million monthly visitors (9.3 million unique monthly visitors), with each visit lasting an average of 16 minutes. The site includes vehicle pricing data, technical and performance specifications, automotive reviews, user discussion forums, automotive-related news, vehicle photos and videos, and other data and information relevant to car buyers, owners, and enthusiasts
There is a United States federal trademark registration
No. 2,106,713 registered October 21, 1997, in the name of “Edmund Publications
Corp” for the mark EDMUND’S for “magazine and series of non-fiction
books featuring vehicle pricing information” and “information services,
namely, providing vehicle pricing information by telephone and by means of an
online communications network.”
The Respondent registered the disputed domain name on May 23, 2000.
As of June 15, 2006, the disputed domain name was forwarded to another website “www.price-autos.com” which offered pricing and
quotes for new vehicles.
5. Parties’ Contentions
Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant’s domain name <edmunds.com>, as well as its business name and famous mark EDMUNDS. The only difference is the replacement of “u” with “e”.
Rights or Legitimate Interests
The Respondent does not have any trademark or intellectual property rights or any other legitimate interest in the disputed domain name. There is no indication that the Respondent uses the disputed domain name as its legal or business name. The sole purpose of the Respondent’s selection of the disputed domain name was to improperly capitalize on the reputation and goodwill established by the Complainant over its long history.
The Respondent’s registration and use cannot constitute a “fair use” due to the Respondent’s intentional misspelling of the Complainant’s mark.
The Respondent’s registration of the disputed domain name which is one letter removed from the Complainant’s famous mark constitutes obvious intent to register the name with intent for commercial gain and to misleadingly divert consumers.
The website at the disputed domain name is similar to the Complainant’s site. Both involve the dissemination of information regarding automobiles such as pricing information intended for consumers the Respondent has thereby made every effort to divert consumers from Complainant’s website. Such actions are strong evidence that the Respondent has no rights or legitimate interest in the disputed domain name.
Registered and Used in Bad Faith
The Respondent has registered and used the contested Domain Name in bad faith.
The Respondent’s selection of the disputed domain name, which is virtually identical to the heavily promoted and well-recognized trademark of the Complainant, clearly indicates bad faith intent. The Respondent’s decision was part of a scheme to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s domain name <edmunds.com> and mark EDMUNDS. The Respondent has not only copied the Complainant’s name but also used competitive material in the content of its website.
The Respondent has been found to be in violation of
the Policy in at least four cases including Volvo Trademark Holding AB v.
Cosmos1, WIPO Case No. D2003-0648
and Sterling Jewelers, Inc. v. InterMos and Cosmos1, WIPO
Case No. D2002-0899.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel does not make any finding in relation to the US registered trademark EDMUND’S invoked by the Complainant. According to the printout supplied by the Complainant, that mark has in fact been assigned by the Complainant to another entity. The address shown for that entity is different to that of the Complainant and the Complainant has not explained its relationship (if any) with that entity.
The Complainant has nonetheless established common law rights in the term EDMUNDS by reason of its extensive use of that term over many years.
The disputed domain name differs from the trademark only by the replacement of the letter “u” with “e”. This difference is insignificant and the disputed domain name still has the obvious potential to cause confusion with the Complainant’s trademark. The domain suffix can be disregarded for the purposes of the comparison.
The Panel concludes that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant must establish at least a prima facie case under this
heading and, if that is made out, the evidential onus shifts to the Respondent
to rebut the presumption of absence of rights or legitimate interests thereby
created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc.,
WIPO Case No. D2003-0070.
The Complainant has not licensed or otherwise authorized the Respondent to use its trademark.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse and profit from internet users seeking the Complainant. Such use of the disputed domain name could not be said to be bona fide.
There is no evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply.
The Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
It is difficult to conceive of any genuine reason why the Respondent would wish to register a domain name consisting of the word “edmends”. The Panel considers that the disputed domain name is intended to be a misspelling of the Complainant’s trademark in order to attract internet users who mistype the Complainant’s trademark into their web browsers. This is the practice known as “typo-squatting”. Such users are diverted to another website providing services similar to those of the Complainant.
The Respondent has not come forward to deny that the Complainant’s assertions of bad faith let alone offer any explanation for its registration and use of the disputed domain name.
The Panel concludes from the foregoing that the Respondent
has registered and used the disputed domain name in bad faith in accordance
with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted
to attract internet users to its website for commercial gain by creating a likelihood
of confusion with the Complainant’s trademark.
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 <edmends.com> be transferred to the Complainant.
Date: July 24, 2006