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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

GS Development Aktiebolag, Aimpoint Aktiebolag v. Aimpiont.com c/o Whois IDentity Shield/GS Development AB

Case No. D2007-0629

 

1. The Parties

The Complainants are GS Development Aktiebolag and Aimpoint Aktiebolag, Malmц, Sweden, represented by Advokatfirman Lindahl, Malmц, Sweden.

The Respondent is Aimpiont.com c/o Whois IDentity Shield/GS Development AB, Vancouver, British Columbia, Canada.

2. The Domain Name and Registrar

The disputed domain name <aimpiont.com> is registered with Nameview Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2007. On April 27, 2007, the Center transmitted by email to Nameview Inc. a request for registrar verification in connection with the domain name at issue. On May 8, 2007, Nameview Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 May 25, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 14, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 21, 2007.

The Center appointed The Honourable Neil Anthony Brown QC as the sole panelist in this matter on July 10, 2007. 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 Complainants are both companies incorporated pursuant to the laws of Sweden and the leading producers of red dot sights for firearms and other weapons.

The Complainants have shown by evidence annexed to the Complaint that the First Complainant is the registered owner of several trademarks for AIMPOINT, namely the trademark registered under numbers 1134464 in the United States of America, TMA 233 335 in Canada, 164 011 in Sweden and 000723346 with the European Community Office of Harmonisation in the Internal Market. The evidence also shows that each of the trademarks was registered many years before the registration of the disputed domain name.

The Second Complainant is shown by the evidence to be a member of the same group of companies as the First Complainant. Accordingly, the Panel will hereinafter refer to the Complainants as “the Complainant”.

As the evidence shows that the abovementioned trademarks are registered in the name of the First Complainant, the Panel will proceed on the assumption that the substance of the Complainants’ submission is that if they are successful the Panel should transfer the domain name to the First Complainant.

The Respondent registered the disputed domain name on September 20, 2005.

5. Parties’ Contentions

A. Complainant

The Complainant alleges that the domain name <aimpiont.com> should no longer be registered with the Respondent, but that it should be transferred to the Complainant.

It contends that this should be done because, within the meaning of paragraph 4 of the Policy, the domain name is confusingly similar to the Complainant’s registered trademark, that the Respondent has no rights or legitimate interests in the domain name and that the domain name has been registered and subsequently used in bad faith. The Complainant maintains that it can prove all three of these requirements and that the appropriate remedy is to transfer the domain name to the Complainant.

In support of its case on the first of these three elements, the Complainant relies on the registered AIMPOINT trademarks to which reference has already been made. It then says that it is self-evident that the domain name <aimpiont.com> is confusingly similar to the AIMPOINT mark as the spelling of the word in the domain name is virtually the same as the spelling of the same word in the trademark.

The Complainant then contends, to establish the second element, that the Respondent has no rights or interests in the domain name because the facts show an obvious intention by the Respondent to benefit from the reputation of the well known AIMPOINT mark, that the Respondent is not named “Aimpoint” or “Aimpiont” and that it has not been authorized to use the AIMPOINT name or mark. Nor, it is argued, can the Respondent bring itself within any of the provisions of paragraph 4(c) of the Policy.

Finally, the Complainant contends that the domain name was registered and is being used in bad faith. It contends that this is so because the Respondent must have been aware of the existence of the AIMPOINT mark and could only have chosen the domain name to attract visitors to a proposed website by targeting users of the Internet who were seeking products under the name Aimpoint, but who mistyped the correct spelling of the word. Moreover, it is argued, this must have been done for commercial purposes, for the only inference that can be drawn from such conduct is that the Respondent in due course hoped to derive so-called ‘click through’ revenue. The Respondent is thus a ‘typosquatter’ and such conduct shows both bad faith registration and use.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

In that regard, the Panel also notes that the fact that the Respondent has not made a submission does not avoid the necessity of examining the issues and of doing so in the light of the evidence. The onus remains on the Complainant to make out its case and past UDRP panels have said many times that despite the absence of a submission from a respondent, a complainant must nevertheless show that all three elements of the Policy have been made out before any order can be made to transfer a domain name.

However, as the Panel will illustrate later, it is possible to draw inferences from the evidence that has been submitted and in some cases from silence. Indeed, paragraph 14 of the Rules incorporates both of those notions into the procedures of the Panel.

The Panel therefore turns to discuss the various issues that arise for decision on the facts as they are known.

For the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy, that:

(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant 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.

It is to be noted that paragraph 4 of the Policy provides that the Complainant must prove that each of the three elements is present. The Panel will therefore deal with each of these requirements in turn.

A. Identical or Confusingly Similar

The Panel accepts the evidence submitted by the Complainants that the First Complainant owns the registered AIMPOINT trademarks to which reference has been made and therefore has rights in those marks.

The Panel also finds that the disputed domain name is confusingly similar to the AIMPOINT marks. The spelling of the domain name is virtually the same as that of the mark and all that has been done to create the domain name is to transpose two of the letters of the word “Aimpoint”, so that the second “i “ of that word now appears in front of the “o” instead of after it. It has been held in several other UDRP proceedings such as National Association of Professional Baseball Leagues, Inc. ,d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011 and Caterpillar Inc. v. Spiral Matrix/ Kentech, Inc, /Titan Net / NOLDC, Inc, WIPO Case No. D2006-0808, that such transpositional spelling may form the basis of confusing similarity.

In any event, the Panel draws the inference that the misspelling in the present case was done deliberately to mislead Internet users who make a mistake in spelling the word “aimpoint” or who believe it is really spelt that way.

The Complainant has therefore made out the first element that it must establish.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii), the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain name. But by virtue of paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:

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

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

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

Thus, if the Respondent proves any of these elements or indeed anything else that shows it has a right or interest in the domain name, the Complainant will have failed to discharge its onus and the Complaint will fail.

The Panel’s task in deciding if a registrant has any rights or legitimate interests in a domain name is made more difficult when the registrant is in default and does not file a Response or any other form of submission. The Respondent in the present case was given notice that it had until June 14, 2007 to send in its Response, that it would be in default if it did not do so and that, by virtue of paragraph 14 of the Rules, the Panel might draw appropriate inferences from that default.

It is well established that, as it is put in the Overview, “…a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP”.

The Panel, after considering all of the evidence in the Complaint and the exhibits attached to it, finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the domain name.

The fact that the Respondent chose the prominent name at issue as its domain name, making only a minor spelling alteration, calls for an explanation, which the Respondent could have given but has not. In the absence of such an explanation by the Respondent, the Panel will assume that ‘any evidence of the Respondent would not have been in [its] favour’: Pharmacia & Upjohn AB v. Dario H. Romero, WIPO Case No. D2000-1273.

The inference is reasonable that the Respondent has engaged in an act of typosquatting with the intention of misleading Internet users, which inter alia gives rise to a prima facie case that it has no rights or legitimate interests in the domain name.

The Respondent has not made any attempt to rebut this prima facie case and the Panel therefore concludes that the Respondent has no such rights or legitimate interests in the domain name. The Complainant has therefore made out the second of the three elements that it must establish.

C. Registered and Used in Bad Faith

The Complainant must prove on the balance of probabilities both that the domain name was registered in bad faith and that it is being used in bad faith: Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

Further guidance on how to implement this requirement is to be found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which shall be evidence of the registration and use of a domain name in bad faith, although other circumstances may also be relied on, as the four circumstances are not exclusive.

The four specified circumstances are:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration 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 the respondent’s documented out-of-pocket costs directly related to the domain name; or

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

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, 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 the respondent’s website or location or of a product or service on the site or location.

In the present case, the Panel must reach its conclusion in light of the fact that the Respondent has registered a domain name which is an obvious misspelling of a trademark, but has not linked it with a website and has thus held it passively without making any practical use of it. Moreover, as the Respondent has not lodged a Response, the Panel is in the position where it has no express indication from the Respondent as to what were its intentions in registering and using the domain name.

It has long been held, however, that a panel in such a position is not prevented from making a finding on the issue of bad faith, but is entitled to draw inferences from the known facts. Thus, the Overview has expressed the panel’s role in such a case as follows:

“3.2 Can there be use in bad faith when the domain name is not actively used and the domain name holder has taken no active steps to sell the domain name or contact the trademark holder? (Passive holding)

Consensus view: The lack of active use of the domain name does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.

Relevant decisions:

Telstra Corporation Limited v. Nuclear Marshmallows D2000-0003, Transfer

Jupiters Limited v. Aaron Hall D2000-0574 and, Transfer

Ladbroke Group Plc v. Sonoma International LDC D2002-0131 among others, Transfer.”