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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Getty Images, Inc. v. Domain Administration Limited

Case No. D2006-1173

 

1. The Parties

The Complainant is Getty Images, Inc., of Washington, United States of America, represented by Perkins Coie, LLP, United States of America.

The Respondent is Domain Administration Limited, of Auckland, New Zealand.

 

2. The Domain Name and Registrar

The disputed domain name <gettimages.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 12, 2006. On September 13, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On September 14, 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 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 Respondent of the Complaint, and the proceedings commenced on September 26, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 16, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2006.

The Center appointed Adam Taylor as the sole panelist in this matter on October 31, 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

The Complainant was incorporated in Delaware in 1997. It has been a publicly traded company on the NASDAQ index since February 1998 and the New York Stock Exchange since November 2002.

The Complainant provides images and related services including news and sports photography and contemporary and archival imagery for use by other entities. The Complainant’s products are found each day in newspapers, magazines, advertising, films and books and on television and websites. Nearly all of the Complainant’s content is delivered digitally. Each month, the Complainant’s website at “gettyimages.com” serves an average of: 3.2 billion thumbnails, 167 million page views, 3.5 million unique visitors, and 6.5 million total visits.

As of December 31, 2005, Complainant had approximately 1,823 employees worldwide, producing revenues of $733.7 million in the 2005 fiscal year.

The Complainant owns a number of trademark registrations from the Unites States Patent and Trademark Office for the mark GETTY IMAGES (first used in 1997) including the following:

- GETTY IMAGES. Reg. No. 2656652. Dated August 30, 2001. International Class 38.

- GETTY IMAGES. Reg. No. 2837208. Dated December 20, 2001. International Class 9.

- GETTY IMAGES. Reg. No. 2842851. Dated December 20, 2001. International Class 16.

- GETTY IMAGES. Reg. No. 2844647. Dated December 20, 2001. International Class 39.

The Complainant also owns numerous worldwide trademark registrations for the mark GETTY IMAGES.

The Complainant owns the domain name <gettyimages.com>, registered in 1999 and used since then.

The disputed domain name was registered on September 12, 2002.

As of September 11, 2006, the disputed domain name resolved to a directory website branded “Welcome to gettimages.com” with affiliate links referring to goods and services similar to those of the Complainant such as “Royalty Free Stock Photography”, “Stock Images”, and “Royalty Free Images”. Those links led to websites offering photography, illustration, imaging, and digital imagery services which competed with the Complainant. There was also a link to the Complainant’s own site.

The Complainant sent a cease and desist letter by email and post to the Respondent on August 31, 2006. No response was received.

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

A slight difference in spelling between a trademark and a domain name does not reduce the confusing similarity. The disputed domain name is the phonetic equivalent of the Complainant’s domain name <gettyimages.com>.

A domain name which uses a portion of a trademark may be found confusingly similar to the trademark.

The website at the disputed domain name heightens the potential confusion, as it relates to services which directly overlap with those of the Complainant.

Rights or Legitimate Interests

The disputed domain name is so unusual, and is used for goods and services so closely connected to the Complainant’s goods and services, it is impossible that it was adopted or used without knowledge of Complainant’s existence; nor is it reasonable to assume that the Respondent could have created the name independently. Indeed, the contents of the site at the disputed domain name indicate that Respondent is well-aware of Complainant’s trademark rights.

By the time that the disputed domain name was registered in 2002, the Complainant had been making long use of the GETTY IMAGES mark.

The Respondent has not used the disputed domain name, or a name corresponding to it, in connection with a bona fide offering of goods or services.

The Respondent is not commonly known by the name or nickname of the disputed domain name.

The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.

The Respondent’s registration and use of the disputed domain name to divert visitors to websites of the Complainant’s competitors is the type of conduct found by prior panels to show that the Respondent has no rights or legitimate interests in the disputed domain name.

The Respondent likely earns click-through fees by diverting internet users to these competing websites. Such attempts to profit from the trademark rights of others shows that the Respondent has no rights or legitimate interests in the disputed domain name.

Registered and Used in Bad Faith

The website at the disputed domain name diverts users to the Complainant’s competitors. Such conduct has been found by prior panels to constitute bad faith use and registration of domain names.

Typosquatting is inherently parasitic and of itself evidence of bad faith. The Respondent has simply omitted the letter “y” from the Complainant’s domain name. This is a clear instance of Respondent’s bad faith typosquatting.

Failure to positively respond to the Complainant’s efforts supports a determination of bad faith registration and use.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant owns a number of registered trademarks for GETTY IMAGES as well as extensive common law rights in that term by reason of its extensive use thereof over many years.

The disputed domain name differs from the trademark only by the omission of “y” from the trademark. 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. The Panel therefore finds that the Complainant has established the first element of the Policy.

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 before the Panel that paragraphs 4(c)(ii) or 4(c)(iii) of the Policy apply.

The Panel finds that 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 and that the Complainant has therefore established the second element of the Policy.

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 terms “GETT” and “IMAGES”. The Panel considers that the disputed domain name was clearly 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 “typosquatting”. Such users are taken to a website with affiliate links referring to services similar to those of the Complainant but which in fact lead to the Complainant’s competitors. Furthermore, the site at the disputed domain name is prominently branded with the disputed domain name, thereby compounding the likelihood of confusion.

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. The Panel therefore finds that the Complainant has established the third element of the Policy.

 

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 domain name, <gettimages.com> be transferred to the Complainant.

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Adam Taylor
Sole Panelist

Date: November 14, 2006