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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Weight Watchers International Inc. v. Domain Proxies LLC

Case No. D2007-0798

 

1. The Parties

Complainant is Weight Watchers International Inc., New York, United States of America, represented by Schwimmer Mitchell Law Firm, United States of America.

Respondent is Domain Proxies LLC, Miami, United United States of America.

2. The Domain Name and Registrar

The disputed domain name <wieghtwatchers.com> is registered with DSTR Acquisition VII, LLC d/b/a Dotregistrar.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2007. On June 1, 2007, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a Dotregistrar.com a request for registrar verification in connection with the domain name at issue. On June 1, 2007, DSTR Acquisition VII, LLC d/b/a Dotregistrar.com transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on June 22, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 12, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 16, 2007.

The Center appointed Sandra A. Sellers as the sole panelist in this matter on August 3, 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

Complainant owns the marks WEIGHT WATCHERS, WEIGHTWATCHERS, and WEIGHTWATCHERS.COM (collectively, the “Marks”). Complainant holds eight US federal registrations for the Marks, for which the earliest registration date is March 21, 1967, and the earliest date of first use in May 15, 1963. Complainant also has registered the Marks in over 100 countries around the world.

Complainant is the leading global provider of weight management services, with a presence in 28 countries around the world. With over four decades of weight management experience, expertise and know-how, it has established WEIGHT WATCHERS as one of the most recognized and trusted brand names among weight conscious consumers. In 2006, consumers spent over $3.0 billion on WEIGHT WATCHERS branded products and services.

Complainant has spent substantial time, effort, and millions of dollars advertising and promoting its products and services under the Marks for more than forty years, with the advertising expenses for the 2006 fiscal year reaching approximately 159 million dollars.

Respondent registered the domain name on June 13, 2004, and the domain name was set to expire on June 13, 2007¹. The domain name reverts to a home page containing links to various categories, all of which relate to weight loss. If one clicks on one of the categories links, other pages appear containing links to specific sites, including Complainant’s site, and those of Complainant’s competitors. Additionally, these pages contain links to other subject matter areas (e.g., airline tickets), which take the consumer to pages containing links to purveyors of those products or services.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that the domain name is identical or confusingly similar to Complainant’s Marks due to the inversion of the letters “ie” for ‘ei” in the Marks, which constitutes typo-squatting. Complainant alleges that Respondent has no rights or legitimate interest in the domain name. Complainant also alleges that Respondent is intentionally using Complainant’s famous Marks to lure Internet users to the domain name for financial gain, and that Respondent’s provision of fraudulent and incomplete contact information is further evidence of bad faith.

B. Respondent

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

 

6. Discussion and Findings

Pursuant to paragraphs 4(a)(i) to (iii) of the Policy, for Complainant to prevail and have the disputed domain name transferred to it, Complainant must show that:

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

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

(iii) the Respondent has registered and are using the disputed domain name in bad faith.

A. Identical or Confusingly Similar

This Panel finds that Complainant clearly has rights in the Marks, based on its many US and worldwide registrations, with registrations dating from forty years ago. The Panel further notes, as set forth above, Complainant and its Marks are well-known for weight management services and products, with sales of over $3 billion in 2006 alone.

Respondent has apparently attempted to capitalize on Complainant’s well-known Marks by merely inverting two letters in Complainant’s Marks. The resulting confusion is compounded by the fact that the domain name home page contains many references to weight reduction products and services, and in each of these instances the word “weight” is spelled properly, without inversion of the letters “e” and “i”. Previous Panels consistently have held that the mere inversion of two letters, known as “typo-squatting” or “typo-piracy,” constitutes confusion. See, e.g., Briefing.com Inc., v. Cost Net Domain Manager, WIPO Case No. D2001-0970 (<breifing.com> confusingly similar to <briefing.com>).

The Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s registered mark, and that Complainant meets the first criterion of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Respondent has not been granted any rights by Complainant to use Complainant’s Marks, and Respondent has no relationship with Complainant. Further, Complainant has no knowledge that Respondent has ever attempted to do business under the Weight Watchers name. On the evidence before the Panel, Respondent does not appear to make any legitimate non-commercial or fair use of the domain name. The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name. Respondent has not rebutted this.

Based on the foregoing and considering Respondent’s use of the domain name explained further below under 6.C., the Panel finds that Respondent does not have any rights or legitimate interests in respect of the domain name and that Complainant meets the second criterion of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

As set forth above, Complainant registered its Marks decades before Respondent registered the domain name. Complainant’s Marks are registered worldwide. Complainant has expended over $159 million dollars advertising and promoting its weight loss products and services. In 2006 alone, consumers spent over $3 billion on Complainant’s products and services. Complainant’s Marks, products and services clearly are well-known. The fame and reputation of a Complainant’s mark is persuasive in determining a Respondent’s bad faith intent. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000).

Based on these facts, this Panel infers that Respondent was aware of Complainant’s mark when Respondent registered the disputed domain name. See, e.g., Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, in which the panel found it “inevitable that Respondent registered the domain names in full knowledge of Complainant’s rights and interests”.

Further, Respondent’s home page contains nothing but links to various weight loss categories, and then to other sites, all of which are related to or competitive with Complainant’s products. Respondent has used the disputed domain name to direct visitors to other vendors. It is likely that Respondent receives “click-through” revenue by directing those visitors to the other websites. UDRP panels have consistently found that, under similar circumstances, receiving click-through revenue by directing visitors to other websites constitutes bad faith. See Nokia Corporation v Nokiagirls.com aka IBCC, WIPO Case No. D2000-0102. This Panel finds that Respondent has used the disputed domain name intentionally to attract Internet users for commercial gain and with the intent to misleadingly divert consumers to other websites.

This Panel finds that Respondent has registered and used the disputed domain name in bad faith, in violation of paragraph 4(b)(iv) 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 <wieghtwatchers.com> be transferred to the Complainant.

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Sandra A. Sellers
Sole Panelist

Dated: August 17, 2007

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¹ The registration for this domain name expired on June 13, 2007. According to email correspondence exchanged between WIPO and the Registrar, the Complainant has contacted the Registrar to renew the domain name, in accordance with Paragraph 3.7.5.7 of the ICANN Expired Domain Deletion Policy, which provides that “In the event that a domain which is the subject of a UDRP dispute is deleted or expires during the course of the dispute, the complainant in the UDRP dispute will have the option to renew or restore the name under the same commercial terms as the registrant”. The Registrar currently is processing the renewal. At this time, Whois shows that the domain name is still registered to the Respondent, so this Panel will proceed with rendering a decision in this dispute.