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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Toilets.com, Inc. v. Port-A-John
Case No. D2007-1497
1. The Parties
The Complainant is Toilets.com, Inc., Utica, Michigan, United States of America, represented by Earl J. Braxton, United States of America.
The Respondent is Port-A-John, Germantown, Wisconsin, United States of America.
2. The Domain Name and Registrar
The disputed domain name <port-a-john.net> is registered with Network Solutions, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2007. On October 12, 2007, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On October 12, 2007, Network Solutions, LLC 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 October 17, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 9, 2007.
The Center appointed Nels T. Lippert as the sole panelist in this matter on November 26, 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 is the owner of U.S. Trademark Registration No. 1,975,634 issued May 28, 1996, claiming first use of the mark PORTA-JOHN since March 19, 1985 in connection with transportable enclosed toilets. The Complainant is the registered user of the domain name <porta-john.com>.
The disputed domain name <port-a-john.net> was registered by Respondent on November 2, 2006.
5. Parties’ Contentions
Complainant contends that the disputed domain name <port-a-john.net> is confusingly similar to Complainant’s registered trademark PORTA-JOHN, differing only in that the disputed domain name contains hyphens between the words “port” and “a” and “john”. Complainant contends that confusion is even more likely in that the business of Complainant and that of Respondent is similar.
Complainant further contends that Respondent has no rights or legitimate interests in respect to the disputed domain name and was so notified in writing via certified mail on a number of occasions all of which have been ignored by Respondent.
By registering the disputed domain name Complainant contends that Respondent is intentionally attracting Internet users to its website by creating a likelihood of confusion with the Complainant’s registered trademark.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order for Complainant to prevail and have the disputed domain names transferred to it, Complainant must prove the following:
(Policy P 4(a)(i-iii)):
(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 was registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out four non-exclusive, but illustrative, circumstances or acts that for purposes of paragraph 4(a)(iii) above would be evidence of the registration and use of a domain name in bad faith.
Paragraph 4(c) of the Policy sets out three illustrative circumstances, any one of which, if proved by the Respondent, would demonstrate the Respondent’s rights or legitimate interests in the domain name for purposes of paragraph 4(a)(ii).
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar if not identical to Complainant’s registered trademark. The disputed domain name differs from Complainant’s trademark only that the “a” in “porta” is separated by a hyphen. The deletion or addition of one letter (here a hyphen) is an insignificant change for the purposes of Policy paragraph 4(a)(i), Universal City Studios, Inc. v. HarperStephens,
WIPO Case No. D2000-0716. Further, it is well established by previous panels that the addition of a generic top-level domain name such as “.net” is not relevant when determining whether a disputed domain name is confusingly similar to a protected mark, see Universal City Studios, Inc. v. G.A.B. Enterprises,
WIPO Case No. D2000-0416.
B. Rights or Legitimate Interests
Complainant has asserted that Respondent lacks rights or legitimate interests to the disputed domain name. The Panel notes that the website with the disputed domain name is "under construction" and that there is no indication in the case record that Respondent would have rights or legitimate interests within the meaning of paragraph 4(c) of the Policy or otherwise.
The Respondent has not filed a response and, therefore, has not asserted that it has any rights or legitimate interests in the disputed domain name, see Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse,
WIPO Case No. D2000-1221, finding that Respondent’s failure to respond can be construed as an admission that it has no legitimate interest in the domain name.
Therefore, according to the Policy paragraph 4 (a)(ii) and paragraph 14(b) of the Rules, the Panel finds in the circumstances of this case that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which for the purposes of the Policy, shall be evidence of the registration and use in bad faith, including: “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location of a product or service on your website or location”.
The Complainant alleges that the Respondent has intentionally attempted to attract Internet users to his website for commercial gain. Since the Respondent has not replied to the Complainant’s contention, he has failed to demonstrate his good faith in the registration or use of the domain name in issue. Moreover, “typosquatting is by itself strong evidence of bad faith in registration and use of a domain name”, The Sportmen’s Guide, Inc. v. Vipercom,
WIPO Case No. D2000-0145.
Therefore, according to the Policy, paragraph 4(a)(iii) and paragraph 14(b) of the Rules, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith.
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, <port-a-john.net> be transferred to the Complainant.
Nels T. Lippert
Dated: December 11, 2007