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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

1st Auto Transport Directory, Inc. v. i Planet Consulting, Inc.

Case No. D2006-1212

 

1. The Parties

The Complainant is 1st Auto Transport Directory, Inc., San Diego, California, United States of America, represented by Morrison & Foerster, LLP, United States of America.

The Respondent is i Planet Consulting, Inc., Ft Lauderdale, Florida, United States of America.

 

2. The Domain Names and Registrars

The disputed domain names are <cenrtaldispatch.com>, <centraldipatch.com>, <centraldisaptch.com>, <centraldispatch.net>, <centraldispathc.com>, and <centraldisptch.com>. All of the disputed domain names are registered with Tucows Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 20, 2006. On September 20, 2006, the Center transmitted by e-mail to Tucows Inc. a request for registrar verification in connection with the domain names at issue. On September 20, 2006, Tucows Inc. transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative 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 September 28, 2006. In accordance with the Rules, paragraph 5(a), the due date for the Response was October 18, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2006.

The Center appointed Bradley A. Slutsky as the Sole Panelist in this matter on November 3, 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 operates a website relating to automobile transport at “www.centraldispatch.com”. The domain name <centraldispatch.com> was first registered on February 15, 1999. Complainant asserts, and the United States Trademark Office records verify, that Complainant filed a United States service mark application for CENTRALDISPATCH on August 11, 2006, claiming a date of first use of March 15, 1999. The United States Trademark Office has yet to act on the application.

Respondent registered the disputed domain names in April and October 2003. All but one of the disputed domain names redirects to the website “www.dispatchmail.com/new/”, which site indicates that it provides “Direct Customer to Carrier contact - No Brokers. Door to Door Auto Shipping”, etc. The “www.dispatchmail.com” website contains a disclaimer toward the bottom right side of the page that states “Dispatchmail.com - We are in no way affiliated or representative of Centraldispatch.com. Dispatchmail.com is not an auto transport dispatch board. Please contact Central Dispatch directly to inquire about there [sic] services. www.centraldispatch.com”.

 

5. Parties’ Contentions

A. Complainant

Complainant asserts that it provides a service for the automobile transport industry through its website at “www.centraldispatch.com”. Complainant asserts that its website allows automobile carriers “to find automobile transport shipments entered by third party brokers, dealers, auto auctions, manufacturers and rental agencies across the United States and Canada”. Complainant asserts that it has been operating this service since 1999, and filed a use-based United States service mark application for CENTRALDISPATCH on August 11, 2006.

Complainant asserts that the disputed domain names are identical or confusingly similar to Complainant’s CENTRALDISPATCH mark, as the domain name <centraldispatch.net> consists of the trademark with the top level domain “.net” at the end, and the other disputed domain names are all close misspellings of Complainant’s mark. Complainant asserts that it wrote to Respondent on August 14, 2006, and demanded that Respondent transfer the disputed domains to Complainant. Complainant attached a copy of that correspondence to its Complaint. Complainant asserts that Respondent responded by e-mail on or about August 16, 2006, and offered to sell the disputed domain names to Complainant. Complainant attached to its Complaint an August 15, 2006 e-mail message from info@iplanetconsulting.com offering, among other things, to sell the disputed domains for $20,000. Complainant asserts that Respondent is not making a bona fide use of the domain names because the services being offered allegedly infringe Complainant’s rights and are unauthorized. Finally, Complainant asserts that Respondent has acted in bad faith because Respondent allegedly is typosquatting and has registered multiple domains that allegedly are identical or confusingly similar to Complainant’s alleged service mark.

B. Respondent

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

 

6. Discussion and Findings

Pursuant to Paragraph 15 of the Rules, 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 applicable”.

Under Paragraph 4(a) of the Policy, the Complainant must prove the following:

(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) Respondent’s domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Under Paragraph 4(a)(i) of the Policy Complainant must show that the domain names at issue are “identical or confusingly similar to a trademark or service mark in which the complainant has rights”.

For purposes of this proceeding, the Panel finds that Complainant has rights in the mark CENTRALDISPATCH. Complainant alleges, and there is evidence to indicate, that Complainant has used this mark since 1999 and has applied for a U.S. service mark for CENTRALDISPATCH. It is not necessary in all cases that a mark be registered in order to invoke the Policy. See, e.g., Emmanuel Vincent Seal trading as Complete Sports Betting v. Ron Basset, WIPO Case No. D2002-1058 (January 26, 2003); but c.f. Fashiontv.com GmbH v. Mr. Chris Olic, WIPO Case No. D2005-0994 (December 8, 2005). Because this case is between U.S. parties and because Complainant alleges (and Respondent does not dispute) that Complainant used the mark prior to filing its service mark application and prior to any use by Respondent, the Panel finds for purposes of this proceeding that Complainant has rights in the mark CENTRALDISPATCH.

In light of theforegoing, the Panel finds that the disputed domain names are identical or confusingly similar to Complainant’s mark. The domain name <centraldispatch.net> is identical to Complainant’s mark except for the addition of the top level domain “.net”. “UDRP case law … has established that top level domains must be disregarded when considering a domain name’s identity or confusing similarity to a trademark”. Unigestion Holding S.A. v. ITCG s.c. W. Drewniak, M. Olczykowski, WIPO Case No. DCH2005-0013 (July 18, 2005). Accordingly, the domain name <centraldispatch.net> is identical to Complainant’s mark. The other disputed domain names consist of slight variations of Complainant’s mark that appear designed to attract people who are attempting to type Complainant’s mark but who mistakenly leave out a letter or misplace a letter. “Typosquatted” domain names, if they have their desired effect, are by definition confusingly similar to trademarks, see Edmunds.com, Inc. v. Yingkun Guo, dba This domain name is 4 sale, WIPO Case No. D2006-0694 (July 24, 2006), and the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark. A disclaimer such as that used by Respondent does not alter the fact that the disputed domain names are identical or confusingly similar to Complainant’s mark. Autosales Incorporated v. Don Terrill, WIPO Case No. D2001-1341 (February 24, 2002).

B. Rights or Legitimate Interests

The Complainant also must demonstrate that the Respondent has “no rights or legitimate interests in respect of the domain name”, Paragraph 4(a)(ii) of the Policy. “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the Respondent’s] rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):”

(i) before any notice to [Respondent] of the dispute, [Respondent’s] use of, or demonstrable preparations to use, the domain name[s] or a name corresponding to the domain name[s] in connection with a bona fide offering of goods or services; or

(ii) [Respondent] (as an individual, business, or other organization) ha[s] been commonly known by the domain name[s], even if [Respondent has] acquired no trademark or service mark rights; or

(iii) [Respondent is] making a legitimate noncommercial or fair use of the domain name[s], without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Paragraph 4(c) of the Policy.

When Respondent is engaged in the commercial sale of competitive products, Respondent cannot take advantage of the rights or legitimate interests defenses of Paragraph 4(c)(i) or (iii) of the Policy by relying on uses that are infringing, because such uses are not considered bona fide or “legitimate” or “fair use”. Two Systems Enterprises Co., Ltd. v. Sonie’s Creations, DEC Case No. AF-0911 (September 7, 2001); AltaVista Company v. James A. Maggs, NAF Claim Number FA0008000095545 (October 24, 2000); Adobe Systems Incorporated v. Domain OZ, WIPO Case No. D2000-0057 (March 22, 2000).

There is no evidence in the record indicating that Respondent has been commonly known by any of the disputed domain names, at least not before Complainant would have established superior rights in Complainant’s mark. Further, the fact that five of the disputed domain names are misspellings of Complainant’s mark, and that five of the disputed domain names merely redirect to the website “www.dispatchmail.com/new/”, militates against a finding that Respondent has been commonly known by the disputed domain names.

Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain names.

C. Registered and Used in Bad Faith

The Complainant also bears the burden of establishing that the “domain name[s] ha[ve] been registered and [are] being used in bad faith”. Paragraph 4(a)(iii) of the Policy. As set forth in the Policy:

the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the domain name[s] in bad faith:

(i) circumstances indicating that [the Respondent has] registered or [the Respondent has] acquired the domain name[s] primarily for the purpose of selling, renting, or otherwise transferring the domain name registration[s] to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent’s] documented out-of-pocket costs directly related to the domain name[s]; or

(ii) [Respondent has] registered the domain name[s] in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent has] engaged in a pattern of such conduct; or

(iii) [Respondent has] registered the domain name[s] primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name[s], [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] website or location or of a product or service on [Respondent’s] website or location.

Paragraph 4(b) of the Policy.

In this case, Respondent’s offer to sell the disputed domain names for $20,000 is evidence of bad faith. Respondent’s e-mail conveying the offer indicates that Respondent believes such an offer is not cybersquatting because Complainant contacted Respondent first. The Policy does not excuse offers for sale far in excess of out-of-pocket costs merely because the Complainant sent the Respondent a cease-and-desist letter before the Respondent made the offer. Accordingly, factor (i) appears to be present and indicates that the disputed domain names were registered and used in bad faith.

The fact that multiple domain names appear to have been registered for purposes of typosquatting satisfies factors (ii), (iii), and (iv), and also indicates that the disputed domain names were registered and being used in bad faith. Typosquatting itself is evidence of bad faith. ESPN, Inc. v. XC2, WIPO Case No. D2005-0444 (June 28, 2005); PC Mall, Inc. v. Admin Billing, WIPO Case No. D2004-0692 (October 27, 2004); Yahoo! Inc. v. Peter Carrington d/b/a Party Night, Inc., d/b/a Music Wave, and d/b/a Phayze Inc., NAF Claim Number FA0308000184899 (October 20, 2003).

Accordingly, the Panelist finds that the disputed domain names have been registered and are being used in bad faith.

 

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 <cenrtaldispatch.com>, <centraldipatch.com>, <centraldisaptch.com>, <centraldispatch.net>, <centraldispathc.com>, and <centraldisptch.com> be transferred to the Complainant.


Bradley A Slutsky
Sole Panelist

Dated: November 19, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1212.html

 

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